may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Michael Arthur-Eugene Logan,
Filed June 17, 1997
Dissenting, Randall, Judge
Benton County District Court
File No. K2-95-1273
Michael S. Jesse, Benton County Attorney, Suzanne Bollman, Assistant County Attorney, Benton County Courthouse, 531 Dewey Street, P.O. Box 129, Foley, MN 56329 (for Respondent)
John M. Stuart, State Public Defender, Lyonel Norris, Assistant State Public Defender, 2829 University Avenue, S.E., Suite 600, Minneapolis, MN 55455 (for Appellant)
Considered and decided by Willis, Presiding Judge, Randall, Judge, and Mulally, Judge.[*]
Appellant Michael Arthur-Eugene Logan was convicted by a jury of felony malicious punishment of a child, in violation of Minn. Stat. § 609.377 (1996). The district court sentenced him to a term of 22 1/2 months executed, an upward dispositional and durational departure. Logan challenges the durational departure. We affirm.
When he was first questioned by police, Logan's version of events was somewhat different from his trial testimony. He told police T.L. had been playing with a hanging plant that had fallen, and as he approached her to scold her, she ran toward her room. Logan said that as T.L. ran into her room, she apparently slipped on some toys. Logan said that he was chasing T.L., and he could not stop in time to avoid accidently stepping on the back of her neck. Logan told the police that he did not believe T.L.'s head had been cut by the falling potted plant.
Logan was charged by complaint filed in Benton County District Court with both malicious punishment of a child and neglect of a child, in violation of Minn. Stat. § 609.378, subd. 1(a)(1) (1996). The neglect charge was dismissed before trial.
Dr. Cindy Melloy, a pediatrician at the St. Cloud Women and Children's Hospital who saw T.L. the morning after she was admitted to the hospital, testified that, in her opinion, T.L.'s injuries could not have been accidental because of their number and diversity. She testified that there were too many bruises in too many different places on T.L.'s body to be consistent with the child falling on the floor or being accidently stepped on by Logan. In addition, she said that the laceration on T.L.'s head would have bled profusely.
The jury convicted Logan of felony malicious punishment of a child, finding that T.L. was a child under the age of four, that she sustained substantial bodily harm, and that she sustained bodily harm to the head, eyes, neck, or otherwise suffered multiple bruises to the body. The district court imposed a sentence of 22 1/2 months executed; a dispositional and upward durational departure from the presumptive guidelines sentence of 15 months stayed.
The district court decided that the victim's age could not be a substantial factor in justifying a durational departure because her age was an element of the charged offense. The court, however, found that the offense was committed in a particularly cruel manner because of Logan's repeated blows to an already injured child and because Logan failed to seek medical attention for the injured child. Logan does not challenge the dispositional departure, but he contests the upward durational departure.
Logan argues that the district court's sentencing departure was an abuse of discretion because the case did not involve the necessary substantial and compelling circumstances. Logan claims that while T.L.'s injuries satisfied "in a marginal sense" the substantial bodily harm element of the offense, they were not in excess of those a child typically sustains in a malicious punishment case.
The district court, however, did not base its upward departure on the extent of T.L.'s injuries. The court instead considered Logan's conduct, both during and after commission of the offense. When deciding whether to depart from the presumptive sentence, the sentencing court may properly 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). The district court based its sentencing departure on Logan's continued assault on T.L. and his failure to seek medical attention for her. Logan's assault on T.L. after she was already injured is an aggravating circumstance sufficient to support an upward departure. See State v. Franson, 403 N.W.2d 920, 923 (Minn. App. 1987) (holding that offense was committed with particular cruelty justifying an upward departure where defendant repeatedly struck helpless victim in back of head with a gun), review denied (Minn. June 25, 1987). Likewise, failure to seek medical attention for the child victim of an assault is particular cruelty justifying an upward departure. State v. Pearson, 479 N.W.2d 401, 404 n.5 (Minn. App. 1991) (noting failure to provide medical assistance for child was factor supporting an upward departure), review denied (Minn. Feb. 10, 1992).
Logan also argues that the district court erred in considering his failure to seek medical attention for T.L. because that conduct was the basis for the dismissed charge of neglect of a child. "Only when the sentencing court contemplates facts related solely to a dismissed charge does the sentencing court create the risk of reversible error." Id. at 406. The district court here did not base its sentencing departure solely on facts relating to the dismissed neglect charge. The court's decision was based on at least two separate grounds, only one of which related to conduct that was a basis for the dismissed charge. This is not reversible error. See State v. Winchell, 363 N.W.2d 747, 750-51 (Minn. 1985) (affirming upward departure where district court relied on number of factors as basis to depart, one of which was related to a dismissed charge). Additionally, as we have noted, failure to seek medical aid for a child assault victim is an appropriate ground for an upward departure, wholly apart from the fact that such failure might also constitute neglect of child. See Pearson, 479 N.W.2d at 404 n.5.
We further conclude that there is support in the record for the district court's sentencing departure apart from the factors the court relied on. See Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985) (holding that if the reasons given by district court for upward departure are improper or inadequate, departure will be affirmed if there is sufficient evidence in record to justify departure). The district court determined that T.L.'s age could not be a substantial factor in justifying a durational departure because it was an element of the charged offense. See State v. Brusven, 327 N.W.2d 591, 593 (Minn. 1982) (holding that sentencing court may not consider victim's age as basis to depart when age is already an element of offense). In certain instances, however, the age of the victim, in conjunction with other factors, may support a departure. Rairdon v. State, 557 N.W.2d 318, 327 (Minn. 1996). While T.L.'s age alone may have been insufficient to support an upward departure because it an element of the charged offense, her absolute vulnerability because she was only two and one-half years old was a proper basis for departure. See State v. Partlow, 321 N.W.2d 886, 887 n.1 (Minn. 1982) (holding that because charged offense contained victim age element, age alone not proper basis to justify upward departure, but age of two-year and 10-month-old victim rendered her absolutely vulnerable, justifying upward departure).
The district court did not abuse its discretion in sentencing Logan.
RANDALL, Judge (dissenting)
I respectfully dissent. As the majority correctly notes, only where substantial and compelling circumstances exist may a sentencing court depart upward from the presumptive sentence under the sentencing guidelines. Minn. Sent. Guidelines II.D. Substantial and compelling circumstances are those that make a defendant's conduct "more or less serious than that typically involved in the commission of the crime in question." State v. Back, 341 N.W.2d 273, 276 (Minn. 1983).
While T.L. did receive a large cut of unclear origin on her head, the remainder of her injuries consisted of multiple bruises and abrasions. Cuts, bruises, and abrasions are the type of injuries found in malicious child punishment cases. There was no evidence presented during trial that appellant had engaged in a pattern of sustained egregious abuse or that the injuries were inflicted with continuing excessive gratuitous cruelty. All malicious child punishment cases are tragic. But after reviewing the record, this is the standard case of malicious child punishment that the law makes criminal, and for which the law sets a presumptive sentence.
Appellant does not challenge the dispositional departure, but does challenge the upward durational departure. I dissent and would have remanded to the trial court to impose the presumptive sentence for this offense.
[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.