This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-96-2336

State of Minnesota,

Respondent,

vs.

Karon Kenyata Baldwin,

Appellant.

Filed October 14, 1997

Affirmed as modified

Klaphake, Judge

Hennepin County District Court

File No. 96-013781

Hubert H. Humphrey, III, Attorney General, 102 State Capitol, St. Paul, MN 55155; and

Michael O. Freeman, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

John M. Stuart, State Public Defender, Mark K. Anderson, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Klaphake, Presiding Judge, Davies, Judge, and Peterson, Judge.

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

KLAPHAKE, Judge

Appellant Karon Kenyata Baldwin challenges his consecutive sentences for first-degree burglary and three counts of second-degree assault. Because aggravating factors exist to justify double, but not greater than double, departures, we affirm the sentences on two of the second-degree assaults, but reduce the sentence on the first-degree burglary to nine years and eight months. Because imposition of consecutive sentences does not unfairly exaggerate the criminality of appellant's convictions, we affirm the consecutive sentencing.

FACTS

On January 29, 1996, appellant, co-defendant Karon Whittaker,[1] and a third man, identified only as "Tron," entered B.R.'s home to rob him. At the time, several other people lived with B.R. and were present, including his mother (B.B.), his 12-year-old sister (P.B.), and two of his friends (R.F. and M.S.). Three of B.R.'s other relatives were also present.

During the crime, Whittaker shot R.F. first and then shot B.R. several times. One of the perpetrators also kicked B.R., who was slumped over and dying. Appellant and Whittaker were arrested a few blocks away. Officers seized from appellant both a sawed-off rifle and a semi-automatic pistol, as well as several .22 caliber bullets.

Appellant was charged with first-degree murder for B.R.'s death, attempted first-degree murder for the shooting of R.F., seven counts of second-degree assault, and first-degree burglary. The jury acquitted him of the murder charges, but convicted him of first-degree aggravated robbery as a lesser-included offense of first-degree murder, seven counts of second-degree assault, and first-degree robbery.

The trial court sentenced appellant to 144 months on the burglary conviction, which represented a 2.48 times departure from the presumptive sentence of four years and ten months. The trial court enumerated several aggravating factors to justify the departure, including B.R.'s death, the terrorizing of multiple victims, and the gratuitous violence toward B.R. as he lay dying. The court sentenced appellant to six years on each of the second-degree assault convictions involving R.F. and P.B., double departures from the presumptive sentences.[2] The court found these double upward departures justified because of the serious and permanent injuries to R.F. and the age of B.R.'s sister. On the assault charge relating to B.R.'s mother, the court imposed the presumptive sentence of three years. Finally, the court made all of the sentences consecutive because the victims each suffered a crime in his or her zone of privacy.

D E C I S I O N

A trial court has broad discretion to depart from a presumptive sentence if aggravating circumstances are present. State v. Best, 449 N.W.2d 426, 427 (Minn. 1989). This court will not disturb a trial court's sentencing departure absent a clear abuse of discretion. State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981). If the record supports findings that substantial and compelling circumstances exist, this court will uphold the departure. See Williams v. State, 361 N.W.2d 840, 843-44 (Minn. 1985).

I.

First-Degree Burglary

Appellant argues that the court erred in considering co-defendant Whittaker's actions in the shootings of B.R. and R.F. to justify an upward departure on appellant's sentence for first-degree burglary. Minn. Stat. § 609.05, subd. 1 (1996), however, makes each party criminally liable for the actions of others involved in committing a crime. Thus, a defendant may receive an enhanced sentence for acts that he did not personally commit. See, e.g., State v. Campbell, 367 N.W.2d 454, 461 (Minn. 1985); State v. Jones, 328 N.W.2d 736, 738 (Minn. 1983).

Appellant further argues that the sentence deprived him of the benefit of his acquittals for first-degree murder and attempted first-degree murder. While a trial court may not base an upward departure on facts relating to the charges on which a defendant was acquitted, the court may consider the course of conduct underlying the offense. State v. Schmit, 329 N.W.2d 56, 57 (Minn. 1983); State v. Pearson, 479 N.W.2d 401, 406 (Minn. App. 1991), review denied (Minn. Feb. 10, 1992). Thus, the court properly considered the death of B.R. and the gratuitous violence against B.R. in determining the appropriate sentence on the burglary charge.

Finally, appellant asserts that the trial court improperly considered factors that are elements of the crime to justify the upward departure on the burglary sentence. We disagree. First-degree burglary requires an unconsented entry into a building with intent to commit a crime, along with at least one of three additional factors: that the building is an occupied dwelling; the burglar possesses a dangerous weapon; or the burglar assaults a person within the building. Minn. Stat. § 609.582, subd. 1 (1996). In this case, all three additional factors were present. Since only one of the additional factors was necessary to support a first-degree burglary conviction, the presence of all three factors made this crime significantly more serious than most, justifying an upward departure. See State v. Graham, 410 N.W.2d 395, 398 (Minn. App. 1987), review denied (Minn. Sept. 30, 1997); State v. Felix, 410 N.W.2d 398, 401 (Minn. App. 1987), review denied (Minn. Sept. 29, 1987).

Nevertheless, the upward limit on durational departures generally is double the maximum presumptive sentence. State v. Evans, 311 N.W.2d 481, 483 (Minn. 1981). Greater-than-double departures will be allowed only where aggravating circumstances are "unusually compelling." Id. Because the aggravating circumstances in this case were not unusually compelling, we modify appellant's sentence on the burglary conviction by reducing it to nine years and eight months, a double departure from the presumptive sentence. Cf. Schmit, 329 N.W.2d at 58.

Second-Degree Assault - R.F.

Appellant argues that R.F.'s injuries should not have been considered in doubly departing, because appellant was acquitted of attempted first-degree murder. A sentencing court may consider injuries inflicted during an assault as an aggravating factor. State v. Cox, 343 N.W.2d 641, 644 (Minn. 1984); State v. Van Gorden, 326 N.W.2d 633, 634 (Minn. 1982). In this case, R.F. was shot four times, and his injuries were far more serious than those typically associated with second-degree assault. Accordingly, the trial court did not abuse its discretion in departing from the presumptive sentence.

Appellant also argues that the trial court improperly enhanced the sentence because the crime occurred in R.F.'s zone of privacy.[3] Appellant insists that this factor was already considered in the separate sentence for the burglary and argues that every act of first-degree burglary involves terrorizing innocent parties within a place where they might otherwise expect to be safe. While unconsented entry of an occupied dwelling is one element of first-degree burglary, the statute does not address whether the dwelling is the occupant's home. See Minn. Stat. § 609.582, subd. 1(a). As such, appellant's burglary conviction and sentence did not necessarily punished him for invading R.F.'s zone of privacy, and that factor could be considered in sentencing. State v. Winchell, 363 N.W.2d 747, 750 (Minn. 1985); State v. Hart, 477 N.W.2d 732, 740 (Minn. App. 1991), review denied (Minn. Jan. 16, 1992).

Second-Degree Assault - P.B.

Appellant argues that the trial court erred in imposing a double durational sentence on the second-degree assault against P.B. because there is nothing in the record to support a finding that she was unusually traumatized. However, P.B., who was 12 at the time of the murder, was forced to witness the shooting death of her brother in their home. See State v. Johnson, 450 N.W.2d 134, 135 (Minn. 1990). P.B. testified at trial, and the court had an opportunity to observe her demeanor and maturity. The court could reasonably conclude that she was a vulnerable person within the meaning of Minn. Sent. Guidelines II.D.2.b.(1). Thus, the trial court did not abuse its discretion in departing upward on the second-degree assault count involving P.B.

II.

Appellant argues that the trial court abused its discretion in imposing the four sentences consecutively. When a crime involves multiple victims, the trial court may impose one sentence per victim for offenses arising from a single behavioral incident. State v. Cole, 542 N.W.2d 43, 53 (Minn. 1996); State v. Marquardt, 294 N.W.2d 849, 851 (Minn. 1980). However, the multiple or aggregate sentences must not unfairly exaggerate the criminality of the defendant's conduct. State v. Norris, 428 N.W.2d 61, 70 (Minn. 1988).

The record here contains at least two factors justifying a long aggregate sentence. First, appellant acted in a group of three or more persons to commit these offenses. See Minn. Sent. Guidelines II.D.2.b.(8). Second, appellant's conduct endangered many people. See State v. Goulette, 442 N.W.2d 793, 794-95 (Minn. 1989); State v. McClay, 310 N.W.2d 683, 685 (Minn. 1981).

The trial court could have imposed presumptive sentences on the seven second-degree assault convictions (three years each) and a two year sentence for the aggravated robbery conviction. Run consecutively, the aggregate sentence would have been 23 years, without including a sentence on the first-degree burglary count. If the trial court had imposed moderate departures of two years on the counts involving R.F. and P.B., the aggregate sentence would have been 27 years, the actual sentence imposed in this case. Accordingly, we hold that appellant's modified sentence of 21 years and 8 months does not unfairly exaggerate the criminality of his conduct and is affirmed.

Affirmed as modified.

[1] The supreme court recently affirmed co-defendant Whittaker's convictions for first-degree murder, attempted first-degree murder, seven counts of second-degree assault, and first-degree burglary, and consecutive sentencing on the murder, attempted murder, and six of the assault convictions. State v. Whittaker, ___ N.W.2d ___ (Minn. Aug. 28, 1997).

[ ]2 Because appellant had a prior felony conviction involving a dangerous weapon, Minn. Stat. § 609.11 provides a mandatory minimum sentence of three years, which, pursuant to Minn. Sent. Guidelines II.E, becomes the presumptive sentence.

[3] It is not clear whether the trial court intended to treat the zone of privacy factor as justifying both a durational departure and the running of these sentences consecutively.