may not be cited except as provided by
Minn. Stat § 480A.08, subd. 3 (1998)
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Timothy Joseph DeRungs,
Filed April 20, 1999
Pine County District Court
File No. K197694
John K. Carlson, Pine County Attorney, Courthouse, Pine City, MN 55063 (for respondent)
Daniel M. Mohs, Daniel Mohs & Associates, Ltd., The Colonnade, Suite 1025, 5500 Wayzata Boulevard, Minneapolis, MN 55416 (for appellant)
Considered and decided by Schumacher, Presiding Judge, Lansing, Judge, and Willis, Judge.
In an appeal from convictions for first degree burglary, fifth degree assault, and violation of an order for protection, Timothy DeRungs challenges an upward sentencing departure and the sufficiency of the evidence to prove nonconsensual entry, and asserts unfair prejudice from two exhibits. The evidence of nonconsensual entry was sufficient to support the burglary conviction, and the district court did not abuse its discretion in the evidentiary rulings or its sentencing. We affirm.
A Pine County jury convicted Timothy DeRungs of first-degree burglary, fifth-degree assault, and violation of an order for protection. The jury found him not guilty of companion charges of kidnapping and terroristic threats. All of the charges arose from an extended incident that occurred between 4 and 6 a.m. at the trailer home of Tanya Hack.
Hack's neighbors testified that they were awakened at 5:15 a.m. by Hack's screaming and pounding on the door of their home. Hack was wet, her wrists were tightly bound with plastic electrical ties, and she was gagged. Derungs' and Hack's testimony diverged sharply on what had occurred before Hack appeared at her neighbors' house. Hack's testimony detailed a violent assault that ended only when she escaped to her neighbors' house; DeRungs testified that he was in the trailer at Hack's request and that Hack laughed at him when he tied her wrists.
After the jury returned its verdict, the district court sentenced DeRungs to 78 months' imprisonment, to be served consecutively to a previously stayed 26-month sentence for a prior burglary conviction, which the district court executed. The prior burglary conviction also involved entry into Hack's dwelling in violation of an order for protection. The original order for protection was issued in 1996 after DeRungs pleaded guilty to assaulting Hack.
When aggravating or mitigating circumstances are present, a district court has broad discretion to depart from the presumptive guidelines sentence and will not be reversed on appeal absent an abuse of discretion. Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996). A departure from the presumptive guidelines sentence must be explained by written reasons specifying the circumstances that justify the departure. Minn. Stat. § 244.10, subd. 2 (1996); Minn. Sent. Guidelines II.D.
The district court executed DeRungs' previously stayed 26-month sentence for a prior first degree burglary conviction. The court observed that the guidelines permit consecutive sentencing for the prior and the current offenses because both offenses were felony crimes against a person; but the result is a sentence shorter than sentencing only on the current burglary. See Minn. Sent. Guidelines II.F. The presumptive sentence for DeRungs' current conviction, based on a criminal history score of three, is 78 months. But because section II.F of the guidelines requires that in consecutive sentencing DeRungs' criminal history score be reduced to zero, the presumptive sentence on the current burglary becomes 48 months, and the total presumptive consecutive sentence is 74 months. See id.
Although the court indicated its disagreement with the sentencing guidelines result, the court's statement of disagreement does not invalidate the sentence. Whether the departure is proper depends on whether the district court's reasons justify it. The district court's stated reasons for imposing a 78-month sentence, for a consecutive total of 104 months, included: (1) the offense was committed in the presence of a child; (2) the offense was committed in the victim's zone of privacy; and (3) the offense was part of a repeated pattern of conduct against the same victim. See generally Minn. Sent. Guidelines II.D.2 (aggravating factors contained in the guidelines are nonexclusive). On these facts, each of the stated factors is a permissible basis for departure.
First, the commission of an offense in the presence of a young child is an aggravating factor that warrants departure. State v. Profit, 323 N.W.2d 34, 36 (Minn. 1982); see also State v. Hanson, 572 N.W.2d 307, 309 (Minn. 1997). Although the events were disputed, it was not disputed that DeRungs' and Hack's two-year-old daughter was present. DeRungs' testimony demonstrated that he knew when he went to Hack's trailer that the child was present. Knowledge of the child's presence and ability to witness violent actions increases the egregiousness of the offense. See Profit, 323 N.W.2d at 36.
Second, the commission of an offense in the victim's zone of privacy warrants departure. State v. Morales, 324 N.W.2d 374, 377 (Minn. 1982). DeRungs argues that the commission of the offense within Hack's zone of privacy is an element of burglary in the first degree and therefore cannot constitute an aggravating factor. See State v. Hines, 343 N.W.2d 869, 873 (Minn. App. 1984) (offense committed in home of victim not grounds for upward departure in case involving burglary of an occupied dwelling). DeRungs is correct that departure on zone-of-privacy grounds may not be sustained under Minn. Stat. § 609.582, subd. 1(a) (burglary of an occupied dwelling). But although DeRungs was charged with two counts of burglary, he was convicted and sentenced only for the burglary charged under Minn. Stat. § 609.582, subd. 1(c) (1996). Minn. Stat. § 609.582, subd. 1(c), requires that a defendant enter a building, not necessarily a dwelling, and commit an assault within the building. Therefore, consideration of DeRungs' acting within Hack's zone of privacy does not result in duplication of the elements of Minn. Stat. § 609.582, subd. 1(c), and is an appropriate aggravating factor.
Third, a repeated pattern of violent criminal conduct against a single victim is an aggravating factor warranting upward departure. State v. Larson, 379 N.W.2d 165, 167-68 (Minn. App. 1985). DeRungs has a history of arrests for burglary and assaults involving Hack. The district court properly considered this factor.
DeRungs also argues upward departure is inappropriate because his daughters from a prior marriage need him; he plans to re-marry their mother and build a stable family. This argument is without merit, as social factors may not be directly considered in the context of durational departure. State v. Behl, 573 N.W.2d 711, 713 (Minn. App. 1998), review denied (Minn. Mar. 19, 1998).
Although DeRungs was charged with two counts of burglary in the first degree, he was convicted and sentenced only for the burglary charged under Minn. Stat. § 609.582, subd. 1(c). Despite this, DeRungs challenges the sufficiency of the evidence to support a conviction under Minn. Stat. § 609.582, subd. 1(a). But because DeRungs challenges the element of consensual entry, an element necessary to sustain either burglary conviction, we address the sufficiency of the evidence presented at trial to sustain the conviction under Minn. Stat. § 609.582, subd. 1(c).
This court's review of the sufficiency of the evidence is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, sufficiently supports the verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). Accordingly, this court will assume "the jury believed the state's witnesses and disbelieved contrary evidence." State v. Braylock, 501 N.W.2d 625, 628 (Minn. 1993). Any inconsistency in the evidence must be resolved in favor of the verdict. State v. Bergeron, 452 N.W.2d 918, 924 (Minn. 1990).
The evidence on whether DeRungs entered Hack's dwelling with or without her consent is the conflicting testimony of DeRungs and Hack. The credibility of individual witnesses is for the jury to determine. State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990). The jury's verdict indicates it believed Hack and disbelieved DeRungs. As a reviewing court, we are not permitted to invade the fact-finding province of the jury by reweighing testimony or determining credibility. See State v. Engholm, 290 N.W.2d 780, 784 (Minn. 1980). Hack's testimony that DeRungs grabbed her around the neck when she stepped onto her porch and forced her back inside the trailer was sufficient to establish lack of consent.
This court generally defers to the district court's exercise of discretion in evidentiary matters, and we will not overturn a district court's evidentiary ruling absent a clear abuse of that discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989). A defendant claiming error in the district court's reception of evidence has the burden of showing both the error and the prejudice resulting from the error. State v. Steinbuch, 514 N.W.2d 793, 799 (Minn. 1994). A ruling is prejudicial, and therefore reversible, if there is a reasonable possibility the error contributed to the conviction. Kelly, 435 N.W.2d at 813.
Exhibit 45, a pack of Kool cigarettes, was admitted over defense counsel's foundation objection. See Minn. R. Evid. 901(a). DeRungs testified that he smoked Kool cigarettes. Deputy Jared Rosati testified that he found a pack of Kool cigarettes near the back fence of Hack's trailer. No chain of custody was established for Exhibit 45, but neither was any testimony offered that Exhibit 45 was the same pack of cigarettes Rosati found. Moreover, the cigarettes were not admitted as evidence of any physical means of identifying DeRungs. Exhibit 45's only relevance was that it was a pack of cigarettes of the same brand DeRungs smokes. Therefore, no particular foundation for admitting the cigarettes was necessary. Exhibit 45 was not prejudicial because the evidentiary value of an item as common as a package of cigarettes, without any physical evidence connecting it to DeRungs, was insubstantial and unlikely to have contributed to the convictions.
Exhibit 33 consisted of a transcript of a taped telephone conversation between DeRungs and Hack. Exhibit 33 was not received into evidence. DeRungs' attorney, however, objected to the state's use of the transcript to impeach DeRungs' testimony that Hack wanted to resume their relationship and that he was not upset by suspicions Hack was dating other men. The rules of evidence permit examination of witnesses on their prior statements. See Minn. R. Evid. 613. Moreover, DeRungs testified that the transcript did represent a conversation between himself and Hack. See Price v. Grieger, 244 Minn. 466, 472, 70 N.W.2d 421, 425 (1955) (if a witness admits unequivocally that he made the prior inconsistent statement, he has thereby impeached himself). The district court did not err by permitting the state's use of Exhibit 33 to impeach DeRungs' testimony.