This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




State of Minnesota,



Chester Lee Grauberger,


Filed March 23, 1999


Davies, Judge

Lyon County District Court

File No. K797288

Michael A. Hatch, Attorney General, James B. Early, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101-2131 (for respondent)

Richard R. Maes, Lyon County Attorney, 607 West Main St., Marshall, MN 56258 (for respondent)

Harlan M. Goulett, Allan H. Caplan, Allan H. Caplan & Associates, P.A., Ten South Fifth St., Suite 525, Minneapolis, MN 55402 (for appellant)

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



This appeal is from appellant Chester Lee Grauberger's conviction for multiple counts of criminal sexual conduct and a triple upward departure in sentencing. We affirm.


On April 18, 1997, J.W. went to a telephone outside a bar in Marshall to call her Alcoholics Anonymous (AA) sponsor. As she approached the telephone, she saw a man, who she later identified as appellant Chester Lee Grauberger, using it. When he finished, he walked to his car and J.W. moved to use the telephone.

J.W. testified that, approximately ten minutes later, she was struck on the head from behind while using the telephone. She was then thrown over her assailant's shoulder and carried to a nearby alley. The assailant threw her to the ground, penetrated her, and repeatedly hit her in the face, leaving blood splattered on a garage at the side of the alley.

A witness testified that he heard a woman crying in the alley and saw a man on top of her. He testified that there was no one else in the alley. He called the police, who arrived quickly and apprehended appellant while he was running away and zipping up his pants. J.W.'s blood was found on appellant's clothing. Appellant claimed that he had come to J.W.'s aid.

J.W. told police that, although she saw her assailant's face only when the police car's headlights shone on him, she was sure he was the man she had seen using the telephone before the attack.

Appellant was charged with multiple counts of criminal sexual conduct. Appellant sought permission to cross-examine J.W. about her prior sexual partners, allegedly to test her credibility. The district court denied this request.

Appellant was convicted of first-, second-, third-, and fourth-degree criminal sexual conduct, as well as third-degree assault. He was sentenced to 258 months in prison, a triple upward durational departure. This appeal followed.



Appellant argues that he was denied his constitutional right to confront witnesses against him. Appellant sought to cross-examine J.W. as to sexual relations she may have had in the several days before the attack. The trial court ruled that this information was statutorily barred by the rape shield statute, Minn. Stat. § 609.347, subd. 3(b) (1998). See also Minn. R. Evid. 412(1)(8) (same). That statute and rule generally bar evidence of a rape victim's sexual history. But the constitutional rights of the accused, particularly the right to confront witnesses, sometimes require admission of evidence that would otherwise be barred by the rape shield statute. State v. Friend, 493 N.W.2d 540, 545 (Minn. 1992).

Appellant concedes that the rape shield law, by its terms, bars the cross-examination he sought, but he claims his proposed cross-examination might have exposed information regarding J.W.'s memory or her motive to fabricate. Even if a proper purpose is identified, however, evidence of sexual history is not admitted over the rape shield statute if the evidence is remote and uninstructive or "would add little to the evidence of record." State v. Crims, 540 N.W.2d 860, 869 (Minn. App. 1995), review denied (Minn. Jan. 23, 1996). Whether the district court abused its discretion in refusing to allow such cross-examination turns on whether the jury had enough other information to adequately appraise the witness's credibility. State v. Lanz-Terry, 535 N.W.2d 635, 641 (Minn. 1995).

Evidence of J.W.'s other sexual partners is uninstructive as to her memory. Even assuming the truth of appellant's hypothesis that J.W. had trouble remembering some of her former sex partners, this information hardly shows whether she could properly identify a man who raped her. In addition, there were more direct and nonprejudicial ways to test her memory, such as questioning her about the effects of her intoxication, other details about the night of the attack, and her ability to identify other people she came in contact with that night.

J.W.'s alleged motive to fabricate testimony to protect an abusive sex partner is based on mere speculation. The trial court did not err in refusing to allow cross-examination because there was no foundation in the record supporting J.W.'s alleged motive to fabricate. See Jackson v. State, 447 N.W.2d 430, 435-36 (Minn. App. 1989) (prohibiting evidence of rape victim's sexual history proper when nothing in record indicates such evidence would reveal victim had motive to lie).

Appellant's constitutional rights were not violated and the trial court did not abuse its discretion in refusing to allow appellant to cross-examine J.W. concerning her sexual history.


Appellant also argues that the trial court erred in allowing J.W. to identify appellant in court. He charges she had participated in an impermissibly suggestive out-of-court identification. In-court identification violates the constitutional right to due process if it is preceded by an out-of-court identification that was so suggestive as to create a substantial likelihood of irreparable misidentification. State v. Kowski, 423 N.W.2d 706, 708 (Minn. App. 1988). The trial court's finding on the suggestiveness of the out-of-court identification, based on the totality of the circumstances, will not be set aside unless clearly erroneous. Id.

Persons displayed in an out-of-court photo lineup need not be "exact clones" of the suspect, but must be "similar in appearance" and "close to the description complainant gave police." State v. Farr, 357 N.W.2d 163, 165 (Minn. App. 1984). Appellant argues that the lineup was improperly suggestive because he was the only one in the photo array with a very short, military-style haircut. J.W. told police that the man who attacked her had a "short army style haircut" and that his hair was "real short." Although appellant was the only one in the photographic line-up with a flattop, all the men pictured had short hair close to the description J.W. gave police. The record supports the trial court's finding that the pretrial identification was not impermissibly suggestive. See State v. Roan, 532 N.W.2d 563, 572-73 (Minn. 1995) (photographic lineup not impermissibly suggestive where only one other person in lineup had "very short" hair and rest had medium-length hair).


Appellant challenges the triple upward departure in his sentence.

The trial court may depart from the presumptive sentence if it gives specific reasons and imposes a sentence proportional to the offense. Minn. Sent. Guidelines II.D. Because appellant was convicted under Minn. Stat. § 609.342, subd. 1 (c), and the trial court found aggravating factors, the court was required to impose at least twice the presumptive sentence. Minn. Stat. § 609.346, subd. 4 (1996).[1] An upward departure in sentencing is reversed only if there was a clear abuse of discretion. State v. Davis, 540 N.W.2d 88, 91 (Minn. App. 1995), review denied (Minn. Jan. 31, 1996). There is no abuse of discretion if there was sufficient evidence to support the departure. State v. Allen, 482 N.W.2d 228, 231-32 (Minn. App. 1992), review denied (Minn. Apr. 13, 1992).

The trial court found that J.W. was vulnerable and treated with particular cruelty. These are aggravating factors justifying an upward departure. Minn. Sent. Guidelines II.D.2.b. There is sufficient evidence to support the trial court's finding that J.W. was vulnerable. Appellant testified that he believed J.W. was clearly intoxicated when he saw her by the telephone booth only minutes before the attack. See State v. Gettel, 404 N.W.2d 902, 906 (Minn. App. 1987) (victim's intoxication supports finding of vulnerability), review denied (Minn. June 26, 1987).

There is also sufficient evidence to support the court's finding of particular cruelty. The record indicates that J.W.: (1) was struck in the face; (2) was penetrated; (3) was severely beaten, leaving her with a skull fracture, a broken nose, and a bleeding head wound; (4) bears a permanent facial scar as a result of the attack; and (5) suffers persistent dizziness and nausea.

A departure from sentencing must be consistent with sentencing in similar cases. See Minn. Sent. Guidelines I (purpose of sentencing guidelines is to ensure consistency in sentencing). The trial court did not abuse its discretion in sentencing because the facts of this case are compelling and a triple upward departure is consistent with sentences in similar cases. See State v. VanGorden, 326 N.W.2d 633, 634-35 (Minn. 1982) (affirming greater than triple upward departure for particularly cruel treatment of vulnerable victim, multiple penetrations, and invasion of zone of privacy); State v. Hayes, 456 N.W.2d 275, 279 (Minn. App. 1990) (affirming greater than triple upward durational departure when multiple penetrations, permanent scars as a result of beating, death threat, and attack in home), review denied (Minn. July 13, 1990).


[1] This statute remains the applicable law for this case, although it was repealed and replaced by Minn. Stat. § 609.109 (1998), effective August 1, 1998. 1998 Minn. Laws ch. 367, art. 6, § 16.