This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Eugene Francis Kleinwachter,


Filed June 17, 1997


Norton, Judge

Marshall County District Court

File No. K7-94-173

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

Michael D. Williams, Marshall County Attorney, 423 North Main Street, Warren, MN 56762 (for Respondent)

John M. Stuart, State Public Defender, Susan K. Maki, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Davies, Presiding Judge, Norton, Judge, and Mulally, Judge.[*]



Appellant contends the trial court abused its discretion by imposing the aggravated sentence of 228 months for his criminal sexual conduct convictions. We affirm.


Appellant Eugene Francis Kleinwachter was charged with 12 counts of first- and second-degree criminal sexual conduct for abusing his daughter, H.K. Appellant began fondling H.K. in 1989 when she was ten years old, forced her to have sexual intercourse soon thereafter, and, by 1992, had intercourse with her three or four times per week. Appellant repeatedly threatened to hurt H.K.'s little sister or H.K.'s mother if H.K. reported the abuse. All of the abuse occurred in the family's farmhouse, often in the bedroom of H.K. or appellant.

As a result of the abuse, H.K. became pregnant at age 13 and, in July 1993, at age 14, H.K. gave birth to a baby girl. DNA testing revealed a 99.93 percent probability that appellant is the father of the child. H.K.'s mother's sister adopted the child. Appellant adamantly denied committing the abuse; his wife, H.K.'s mother, testified in his defense at trial, as did the aunt who adopted H.K.'s baby.

A jury convicted appellant of 11 of the 12 counts of criminal sexual conduct. The trial court imposed concurrent sentences of 86 months, 30 months, 122 months, 146 months, and 240 months for five of the convictions. In 1995, appellant challenged his conviction and sentence. This court affirmed appellant's conviction, but remanded the case for resentencing after determining that the trial court erroneously adjudged appellant guilty of specific incidents of abuse as well as a continuing course of abuse. On remand, the trial court vacated the five prior sentences, omitted the conviction for the continuous course of abuse, and imposed new concurrent sentences of 21 months, 98 months, 122 months, and 228 months.


Appellant challenges his 228-month sentence, which is an upward durational departure from the presumptive sentence of 146 months. The trial court may depart from the presumptive sentencing guidelines when "the individual case involves substantial and compelling circumstances." State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981) (quoting Minn. Sent. Guidelines IV, V (tables show level VIII offense with criminal history score of 0 yields a presumptive 86-month incarceration). A durational departure is appropriate only when a defendant commits a crime in a manner that is significantly more or less serious than the typical commission of the crime. State v. Back, 341 N.W.2d 273, 276 (Minn. 1983). Consequently, the trial court has broad discretion to depart only if aggravating or mitigating circumstances exist. State v. Best, 449 N.W.2d 426, 427 (Minn. 1989). On appeal, this court examines the record to determine whether the trial court's reasons justify departure from the presumptive sentence. Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).

Appellant argues the prosecutor abused its discretion when it charged appellant with four separate counts of criminal sexual conduct rather than one count of continuous course of abuse. He contends that, if he had been charged with only a continuing course of abuse, his presumptive sentence would have been 86 months, given his criminal history score of 0. See Minn. Stat. § 609.342, subd. 1(h)(iii) (1996) (multiple acts of sexual abuse over an extended period of time); Minn. Sent. Guidelines IV, V (tables show level VIII offense with criminal history score of 0 yields a presumptive 86-month incarceration). Appellant thus argues that the longest permissible durational departure would be twice that sentence: 172 months. See State v. Evans, 311 N.W.2d 481, 483 (Minn. 1981) (generally limiting upward durational departure to double the length of presumptive sentence).

We reject appellant's attempt to impose a duty on the trial court to "check" the discretion of the prosecutor when charging a defendant. The prosecutor's broad charging authority is not subject to judicial review unless appellant proves that the prosecutor acted with selective or discriminatory intent. State v. Krotzer, 548 N.W.2d 252, 254 (Minn. 1996); State v. Johnson, 514 N.W.2d 551, 556 (Minn. 1994) (citing State v. Herme, 298 N.W.2d 454, 455 (Minn. 1980)). The prosecutor correctly charged appellant with the various specific crimes that he committed as well as with the four-year continuing course of abuse that he inflicted on his daughter. Appellant has not been convicted twice or punished twice for the same offense or for a lesser-included offense by virtue of the charges. Appellant has not shown that the prosecutor clearly abused its discretion in charging him, nor has he revealed any deliberate discrimination entitling him to relief.

The record supports the trial court's reasons for departure. The court first noted that H.K. was particularly vulnerable due to her young age. H.K. endured the abuse from the time she was 10 until she was 14 years old and bore a child. Generally, it is inappropriate for the sentencing court to use the youth of the victim as a basis for departure when the victim's youth was an element of the offense. State v. Brusven, 327 N.W.2d 591, 593 (Minn. 1982). Although H.K.'s age did factor into the specific offenses with which appellant was charged, the court may consider her age in conjunction with other facts in this case in order to determine whether these incidents of abuse were different than the "typical" criminal sexual conduct. State v. Luna, 320 N.W.2d 87, 89 (Minn. 1982). It was appropriate for the court to consider H.K.'s age in conjunction with appellant's callousness and denial of responsibility for H.K.'s pregnancy. Her youth was a disadvantage in dealing with that level of traumatic experience at the hands of her father.

The record supports the trial court's finding that appellant treated H.K. with particular cruelty when he threatened to hurt her mother and sister if H.K. reported the abuse. See State v. Cermak, 344 N.W.2d 833, 840 (Minn. 1984) (offender acts with particular cruelty when he threatens to break every bone in victim's body if he reported abuse); State v. Lamar, 474 N.W.2d 1, 3 (Minn. App. 1991) (affirming upward durational departure in sentence where offender made death threat after rape), review denied (Minn. Sept. 13, 1991). Appellant repeatedly made threats against H.K.'s mother and sister in an effort to keep H.K. silent about the abuse. Her level of fear is evident in the fact that she kept silent, even through her pregnancy. Thus, this cruelty supports the trial court's departure.

Next, the court found that H.K. became pregnant as a result of the abuse. When pregnancy has resulted from criminal sexual conduct, the court has determined that the seriousness of the offense justifies an upward durational departure in sentence. Ture v. State, 353 N.W.2d 518, 522 (Minn. 1984). Appellant acknowledges that his daughter's pregnancy is an aggravating factor for departure.

Finally, the trial court found that the negative impact of the abuse on H.K.'s family situation warranted a durational departure. See Kilcoyne v. State, 344 N.W.2d 394, 397-98 (Minn. 1984) (court considers effect of abuse on victim's family life when evaluating reasons for departure). Similar to the victim in Kilcoyne, H.K. no longer has a relationship with her biological family because the abuse has torn them apart. The testimony at trial revealed that H.K. has no support from her immediate family; her mother and aunt testified on behalf of appellant. H.K. now lives in permanent foster care and has no contact with her family. Appellant stated that he and his wife are terminating their parental rights to H.K. Like Kilcoyne, the abuse here has destroyed H.K.'s family life and warrants a durational departure in appellant's sentence.

Not only are those reasons for departure adequate, the record alone justifies the upward departure. See Williams, 361 N.W.2d at 844 (if trial court's reasons for departure are inadequate, this court may determine if record justifies departure). For instance, appellant continuously assaulted his daughter in their family home. See State v. Van Gorden, 326 N.W.2d 633, 635 (Minn. 1982) (basis for sentencing departure exists when offender invades victim's zone of privacy by committing assault in her home). The invasion of privacy is no less because it occurred in appellant's home because H.K. "had a reasonable expectation of privacy in her bedroom, even though it was in appellant's home." State v. Griffith, 480 N.W.2d 347, 351 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992).

The record also demonstrates that H.K. has suffered psychological injury from the abuse. See State v. Patterson, 511 N.W.2d 476, 478 (Minn. App. 1994) (psychological injury is sufficient ground for departure), review denied (Minn. Mar. 31, 1994). In her effort to cope with the abuse, the secrecy, the pregnancy, and the adoption of her child, H.K. sought counseling, which is indicative of psychological injury. See id. (victim, traumatized from intruder and sexual assault, required future counseling); State v. Allen, 482 N.W.2d 228, 233 (Minn. App. 1992) (finding psychological and emotional injury warranting upward departure where victim required therapy and medication after assault), review denied (Minn. Apr. 13, 1992).

The facts further establish that appellant abused his position of trust and authority with H.K. when he repeatedly abused her and threatened her in order to keep the abuse a secret. State v. Larson, 379 N.W.2d 165, 167-68 (Minn. App. 1985) (defendant's abuse of trust and authority warrants durational departure from presumptive sentence where father violated position of authority by abusing his daughter and impregnating her twice). A flagrant example of this abuse of trust occurred when H.K. confronted appellant about her pregnancy and, after repeatedly denying responsibility in the matter, he forced H.K. to tell a story to explain away her pregnancy as the result of an indiscretion with a high school boy from a neighboring town. Appellant's violation of the trust relationship between a father and daughter warrants a durational departure.

We are troubled by the egregious facts of this case that amply supported appellant's extended sentence, by appellant's lack of remorse and insensitivity toward his daughter, and by the waste of limited state resources on this unnecessary second appeal. As clear cut as the evidence is here, this case should not have been appealed after remand.


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