This opinion will be unpublished and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

C0-96-403

State of Minnesota,

Respondent,

vs.

Eric Dwayne Little,

Appellant.

Filed November 19, 1996

Affirmed

Amundson, Judge

Dissenting, Randall, Judge

Anoka County District Court

File No. K79414001

John M. Stuart, State Public Defender, Scott G. Swanson, Assistant State Public Defender, 2829 University Ave. S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, Robert M.A. Johnson, Anoka County Attorney, M. Katherine Doty, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, Seventh Floor, Anoka, MN 55303 (for respondent)

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

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

AMUNDSON, Judge

Eric Dwayne Little challenges his judgments of conviction and his sentence, arguing that his conviction should be reversed because the evidence was insufficient as a matter of law and the trial court erred in imposing a greater-than-double upward durational departure. We affirm.

FACTS

On December 1, 1994, a girl in the ninth grade at Spring Lake Park High School was raped while she was alone in the girls' locker room after re-taking a swimming test that she had missed.

On December 2, 1994, an initial complaint was filed charging appellant Eric Dwayne Little with third and fourth degree criminal sexual conduct. On December 8, an amended complaint was filed, charging Little with two counts of first degree criminal sexual conduct, two counts of second degree criminal sexual conduct, one count each of third and fourth degree criminal sexual conduct, and kidnapping.

After the trial, the jury found Little guilty of all charged offenses. Little was sentenced to 227 months for the first degree criminal sexual conduct offense. The presumptive sentence range for first degree criminal sexual conduct, a severity level VIII offense, for a person with a criminal history score of zero, is 81-91 months. This sentence is 2.5 times the high end of the presumptive sentence range. The trial court also

imposed a concurrent 52-month sentence for the kidnapping offense. This appeal followed.

D E C I S I O N

I. Sufficiency of the Evidence

Little argues that the evidence in this case was insufficient as a matter of law, pointing to problems with eyewitness identification. The DNA expert from the BCA testified that the DNA found on the perineal swabs matched Little's DNA, with a random match probability of one in 500,000,000. He also testified that the DNA on the victim's underwear matched Little's DNA, with a random match probability of one in 35,000,000. In addition, the victim identified Little and other witnesses placed Little at or near the school around the time of the offense. Thus, we conclude that the jury had ample evidence on which to base the convictions. See State v. Pierson, 530 N.W.2d 784, 787 (Minn. 1995) (a reviewing court assumes that the jury believed the state's witnesses and disbelieved any evidence to the contrary).

II. Greater-Than-Double Upward Departure

Little argues that the facts of this case do not justify a greater-than-double upward departure.

A greater-than-double upward departure is appropriate only in "extremely rare cases" in which the aggravating circumstances are severe. State v. Van Gorden, 326 N.W.2d 633, 635 (Minn. 1982). Determining whether severe aggravating circumstances exist is a decision that is based on the reviewing court's "collective, collegial experience in reviewing a large number of criminal appeals." State v. Norton, 328 N.W.2d 142, 146 (Minn. 1982).

The state correctly notes that a trial court must sentence a person convicted of certain first degree criminal sexual conduct offenses to at least twice the presumptive sentence if the sentencing court determines on the record that the crime involved an aggravating factor (as the court did in this case). See Minn. Stat. § 609.346, subd. 4 (1994).

The trial court based its departure on the following factors: (1) the age difference between Little (30) and the victim (15); (2) Little was more physically powerful than the victim, and she was treated with particular cruelty because he told her he had a knife; (3) the victim's zone of privacy was violated; (4) the victim suffered emotionally and psychologically; (5) the victim was vulnerable because she was undressed at the time she was attacked; and (6) "the incredible boldness it took to commit this crime at this time and place."

Although we are not prepared to hold that the locker room was within the victim's zone of privacy, we believe the trial court properly took into account the expectation of safety in such a school setting when it was looking at the facts of the case as a whole.

We conclude that, because the trial court was required to sentence Little to at least twice the presumptive sentence, and taking into account all the factors the trial court relied on, the sentence imposed in this case was within the trial court's discretion.

Affirmed.

RANDALL, Judge (dissenting).

I respectfully dissent. Although the crime is serious, the record simply does not justify a two and one-half times upward departure.

The trial court departure factors were correctly cited by the majority. The age difference is worth nowhere near a 2.5 times upward departure. The age of a minor victim, if it is a statutory factor, is built into the presumptive sentence.

That Little was more physically powerful than a 15-year old high school girl surprises no one and cannot be a departure factor. All such sexual assaults where a man attacks a woman have that in common. At least appellate courts do not see many cases where the female victim was more physically powerful than the aggressor.

The fact that Little told the victim he had a knife (when there is no credible evidence that he had one, just credible evidence that he did not but said he did) not only is not grounds for a 2.5 times upward departure, it is not grounds for any upward departure. The majority correctly states prevailing law when it says "[d]etermining whether severe aggravating circumstances exist is a decision that is based on the reviewing court's 'collective, collegial experience in reviewing a large number of criminal appeals.' State v. Norton, 328 N.W.2d 142, 146 (Minn. 1982)."

An aggressor in a personal assault telling the victim that he has a gun or a knife or a club is common. The law is settled that only substantial and compelling circumstances warrant upward departures. State v. Garcia, 302 N.W.2d 643, 646 (Minn. 1981) (holding that a trial court may depart from the presumptive sentence under the guidelines only if "substantial and compelling circumstances exist"); State v. Best, 449 N.W.2d 426, 427 (Minn. 1989) (holding that the trial court has discretion to depart from the sentencing guidelines only if aggravating or mitigating circumstances are present).

The majority concedes that a locker room is not supported by any credible authority on the issue of zone of privacy. I suggest the fact of a school setting should not be an upward departure factor, because legislatures are free to, and do, add to the presumptive sentence additional time for crimes committed within a school zone, if that is thought appropriate.

All victims suffer emotionally and psychologically. I do not suggest that the majority state otherwise. Emotional and psychological distress are painful, are all too often an unfortunate by product of crime, and often one with the most lasting impression, rather than the loss of health or money. Emotional and physical distress to victims are common threads through all crimes. Thus, prudence tells us that the factor of distress to a victim is built into the presumptive sentence for various crimes.

It is not expected that trial judges will state on the record that a particular victim suffered no emotional and physical distress and thus a downward departure is mandated. Rather the presumptive sentence assumes such distress, and is part of the factors setting the number of years for the presumptive sentence.

That the victim of a sexual assault is caught in a stage of full or partial undress is not uncommon, particularly when the attack takes place any place indoors where people naturally and normally may be in the process of changing clothes. As stated, the circumstances need to be substantial and compelling. This crime was egregious. But more importantly, it was not different from those happening where people are changing clothes.

I suggest that "incredible boldness" cannot be an upward departure factor as a matter of law. The majority of all perpetrators of physical assaults act with the boldness that the average citizen does not. Boldness is not a deviation, not an aberration. The absence of boldness in a perpetrator of a sexual assault is the exception. Boldness is the rule. Further, the law does not allow, nor should it, the perpetrator of a sexual assault to testify that he did it with prudence and caution rather than boldness, and is entitled to a downward departure.

Boldness is neither substantial nor compelling. Only, unfortunately, common in the actions of those who commit these crimes.

A double upward departure is the appropriate limit. See State v. Van Gorden, 326 N.W.2d 633, 635 (Minn. 1982) (only in "extremely rare cases" will a greater than double upward departure be appropriate).