This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C9-98-887

State of Minnesota,
Respondent,

vs.

Esmail Sarfehjouy Masuleh,
Appellant.

Filed February 9, 1999
Affirmed
Willis, Judge

Hennepin County District Court
File No. 97076306

Michael A. Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Paul C. Thissen, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Willis, Presiding Judge, Crippen, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Esmail Sarfehjouy Masuleh appeals from his conviction of attempted third-degree criminal sexual conduct, claiming the evidence is insufficient to sustain the conviction, and from his sentence, claiming the district court abused its discretion in departing upwardly from the sentencing guidelines. We affirm.

FACTS

Appellant worked as a nurseís assistant at a nursing home in St. Louis Park, assisting residents with basic needs. He regularly attended to L.E., a 71-year-old woman who suffered from Parkinsonís disease and dementia. On August 27, 1997, a co-worker entered L.E.ís room and saw appellant standing next to L.E.ís bed with his pants and underwear pulled down. He was holding his penis in his hand while moving it forward and backward toward L.E.ís buttocks and vaginal area, which were exposed and on the edge of the bed near appellant.

A medical examination showed that L.E. had redness on her labia and red marks on her wrist, but there was no evidence of penetration. Appellant was charged with attempted third-degree criminal sexual conduct, in violation of Minn. Stat. ßß 609.17, 609.344, subd. 1(d) (1996).

After a bench trial, the district court found appellant guilty and sentenced him to 40 months in prison, an upward departure from the 24-month presumptive sentence. This appeal followed.

D E C I S I O N

I. Sufficiency of Evidence

When there is a challenge to the sufficiency of the evidence, our review is

limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.

State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989) (citation omitted); see State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988) (stating test is whether jury "could reasonably conclude that a defendant was proven guilty"). We must assume that the jury believed the stateís witnesses, while disbelieving contradictory evidence. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). When a defendant has waived his right to a jury trial, this court reviews the district courtís findings as it would review a jury verdict. State v. Knowlton, 383 N.W.2d 665, 669 (Minn. 1986).

Appellant claims the evidence is insufficient to support his conviction of attempted third-degree criminal sexual conduct. The district court concluded that L.E. was mentally impaired, mentally incapacitated, and physically helpless and that appellant knew or should have known of those conditions. See Minn. Stat. ß 609.344, subd. 1(d) (providing that third-degree criminal sexual conduct occurs when person engages in sexual penetration with another person if "the actor knows or has reason to know that the complainant is mentally impaired, mentally incapacitated, or physically helpless").

Appellant claims the evidence is insufficient to support the district courtís conclusion that L.E. was mentally impaired. For purposes of the criminal sexual conduct statutes, mentally impaired

means that a person, as a result of inadequately developed or impaired intelligence or a substantial psychiatric disorder of thought or mood, lacks the judgment to give a reasoned consent to sexual contact or to sexual penetration.

Minn. Stat. ß 609.341, subd. 6 (1996). L.E.ís primary physician testified that at the time of the incident L.E. did not have the ability to make "reasoned decisions" because of her dementia. This evidence is sufficient to support the district courtís conclusion that L.E. was mentally impaired within the meaning of the statute.

Appellant also claims that the evidence is insufficient to sustain the district courtís conclusion that L.E. was physically helpless, which the applicable statute defines as being

(a) asleep or not conscious, (b) unable to withhold consent or to withdraw consent because of a physical condition, or (c) unable to communicate nonconsent and the condition is known or reasonably should have been known to the actor.

Minn. Stat. ß 609.341, subd. 9 (1996). The co-worker testified that L.E. cannot speak. A supervising nurse testified that when she went to L.E.ís room after learning of the incident, L.E. appeared to be sleeping and was not making any sounds. Additionally, the physicianís testimony showed that L.E. had reduced communication abilities and that her "receptive and expressive capabilities were very much impaired." There is sufficient evidence to support the district courtís conclusion that L.E. was physically helpless within the meaning of the statute.

The state concedes that the evidence is insufficient to support the district courtís conclusion that L.E. was mentally incapacitated, as defined by Minn. Stat. ß 609.341, subd. 7 (1996). We agree. The statute provides that "mentally incapacitated" means

a person under the influence of alcohol, a narcotic, anesthetic, or any other substance, administered to that person without the personís agreement, lacks the judgment to give a reasoned consent to sexual contact or sexual penetration.

Id. Because nothing in the record suggests that L.E. was under the influence of any substance administered to her without her agreement, the district court erred in concluding L.E. was mentally incapacitated. But we have determined the evidence supports the district courtís conclusions that L.E. was both mentally impaired and physically helpless, either of which is sufficient to sustain appellantís conviction.

II. Sentencing Departure

This court will not reverse a district courtís decision to depart from the sentencing guidelines absent a clear abuse of discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). We will overturn the district courtís decision if the sentence is disproportional to the severity of the crime. State v. Behl, 573 N.W.2d 711, 714 (Minn. App. 1998), review denied (Minn. Mar. 19, 1998). A district court may depart upwardly from a presumptive sentence only if aggravating circumstances are present. State v. Best, 449 N.W.2d 426, 427 (Minn. 1989). The standard for an upward departure is "whether [appellantís] conduct somehow may be said to be significantly more serious than typically involved in the commission of the offense." Id.

Appellant argues that the district court abused its discretion in considering appellantís violation of his position of trust as a caretaker for L.E. as an aggravating factor, claiming violation of his position of trust was "precisely the essence of the crime," citing State v. Sebasky, 547 N.W.2d 93, 101 (Minn. App. 1996) (stating district court may not depart from presumptive sentence based on factor that is also element of crime), review denied (Minn. June 19, 1996). But abuse of a position of trust is an aggravating factor when it is not an element of the crime. See State v. Carpenter, 459 N.W.2d 121, 128 (Minn. 1990) (relying on abuse of position of trust as aggravating factor where it was not element of crime). And here it is not an element of the crime of which appellant was convicted. See Minn. Stat. ßß 609.344, subd. 1(d) (defining crime of third-degree criminal sexual conduct), 609.17 (defining attempt to commit crime). The district court did not abuse its discretion in considering the violation of appellantís position of trust as an aggravating factor.

Appellant also argues that the district court abused its discretion in relying on the impact of the crime on L.E. and her family to support the upward sentencing departure. The court found that the incident has "had an extreme detrimental impact" on L.E. and her family, and that, since she learned what happened to her, L.E. has suffered physical and mental deterioration that family members attribute to the incident. See State v. Frank, 416 N.W.2d 744, 749 (Minn. App. 1987) (stating psychological and physical injuries to victim are aggravating factors for sentencing purposes), review denied (Minn. Feb. 8, 1988); see also State v. Norton, 328 N.W.2d 142, 146 & n.2 (Minn. 1982) (considering impact of crime on victimís family to be aggravating factor in affirming durational departure). Appellantís conduct caused extraordinary emotional trauma to L.E.ís family members because the family entrusted L.E. to the care of the nursing home; a family member described the familyís guilt as "all-consuming" because they wonder if L.E. would have been safe if they had made a different decision. The impact of the crime on L.E. and her family supports the upward sentencing departure.

Finally, the district court relied on the fact that L.E. was a vulnerable adult to support the upward sentencing departure. See Minn. Sent. Guidelines cmt. II.D.103.2.b.(1) (providing that victimís "particular[] vulnerab[ility] due to age, infirmity, or reduced physical or mental capacity, which was known or should have been known to the offender," is aggravating factor). Appellant argues that L.E.ís vulnerability was an element of the crime and she was "not more vulnerable than the typical victim." But a victimís age is not an element of the offense, and L.E. was more vulnerable than the typical victim; there is evidence she was totally dependent on others. L.E.ís particular vulnerability is an aggravating factor supporting the upward sentencing departure.

The 40-month sentence is not disproportional to the severity of appellantís crime. The district court did not abuse its discretion in departing upwardly from the presumptive sentence.

Affirmed.