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,
Robert Amp Martinez Moreno, Jr.,
Filed July 20, 1999
Faribault County District Court
File No. K297523
Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, and
Brian Roverud, Faribault County Attorney, P.O. Box 5, Blue Earth, MN 56013 (for respondent)
John M. Stuart, State Public Defender, Susan K. Maki, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Peterson, Presiding Judge, Short, Judge, and Shumaker, Judge.
After a jury found Robert Amp Martinez Moreno guilty of first-degree criminal sexual conduct, the trial court departed from the presumptive executed sentence of 134 months and instead sentenced Moreno to the statutory maximum of 30 years. Contending that the sentence is excessive, Moreno appeals. We affirm.
Despite his conviction for second-degree criminal sexual conduct in 1993, Moreno somehow had retained a right to visit H.M.M. without supervision. On December 19, 1997, he picked H.M.M. up from her mother's house to take her for a weekend visitation. Before leaving the house, Moreno apologized for his sexual assault on his daughter, and promised that he would not drink alcohol when he was with her.
Moreno took H.M.M. to his sister's home. Later that evening he went out drinking with his brother-in-law. H.M.M. stayed behind and eventually went to sleep in her aunt's bedroom.
In the middle of the night, Moreno returned, woke H.M.M. up and brought her into the living room. He told her to take her pants off. She refused. He then put his hands underneath her shirt and rubbed her breasts and kissed her. He took his own clothes off and pulled H.M.M.'s pants down. He put his penis into her vagina and then into her anus. He put his finger into her vagina and then into her anus. When H.M.M. screamed, Moreno choked her and threatened to kill her. Then he put his tongue inside her anus and her vagina, and he bit her vagina and buttocks several times. During this assault, Moreno told his daughter that this was practice and it was her punishment.
H.M.M. telephoned her mother in the morning and told her what her father had done to her. Her mother called the police. The police chief took H.M.M. and Moreno to the police station. H.M.M. described Moreno's sexual assault. When H.M.M.'s mother arrived, the chief asked her to examine H.M.M. for signs of injury. She did so and saw bite marks, redness and bruises on H.M.M.'s vagina.
The chief took H.M.M. and her mother to the hospital. When a physician examined H.M.M., he saw bruises on her buttocks and outer vaginal area, and he saw that the first layer of skin inside H.M.M.'s vaginal opening had been rubbed off. H.M.M. was so uncomfortable and upset that the physician had to sedate her to complete his examination.
Moreno went to trial on one count of first-degree criminal sexual conduct. The jury found him guilty. The state moved the trial court to sentence Moreno as a patterned sex offender. The court ordered a psychological examination and scheduled a sentencing hearing. At the beginning of the hearing on June 22, 1998, Moreno's attorney moved for a continuance. He argued that he had just received the psychological report and that he wanted to have an expert review it and then conduct an independent sex offender evaluation. The court denied the motion.
The psychologist who evaluated Moreno testified at the hearing. He related that Moreno is chemically dependent and has had five treatments for the condition. He said that Moreno blames his sex crimes on his intoxication. He reported that Moreno explained that he sexually assaulted his daughter this time because he was angry with her for having caused him so much trouble after the first time he raped her. According to the psychologist, Moreno said that he was motivated as much by anger as by sexual impulses. Moreno also admitted two other sexual assaults on teenaged females.
The psychologist diagnosed Moreno as an angry, aggressive, patterned sex offender who is at very high risk for reoffending and for using sex to hurt others. The psychologist explained that Moreno clearly "uses his sexuality in a way that is very typical of a rapist."
After the hearing, the trial court decided to depart durationally from the presumptive sentence. The court concluded that, although Moreno's second criminal sexual conduct conviction alone justifies a departure, many aggravating factors also support an increased sentence. Moreno was particularly cruel to his 12-year-old daughter when he choked her, threatened to kill her, and repeatedly penetrated her vagina and anus with his penis, finger, and tongue. Moreno violated the bond of trust between child and parent. Not only did he betray his child the first time in 1993, but he did it again just a few hours after he picked her up ostensibly to attempt to redevelop a healthy relationship with her. H.M.M. suffered physical and psychological harm. And, finally, Moreno was motivated by his sexual impulses; or his crime was part of a pattern of predatory behavior that had sex as its goal.
The court found that the evidence satisfied the criteria for sentencing someone as a patterned sex offender and imposed the statutory maximum of 30 years in prison.
A trial court has discretion to depart from the sentencing guidelines, and we will not reverse absent a clear abuse of that discretion. State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981).
Moreno argues that because his rape of H.M.M. was not egregious, and that he did not mutilate, torture, or permanently injure her, the trial court was not justified in imposing a sentence greater than a double durational departure. State v. Glaraton, 425 N.W.2d 831, 834 (Minn. 1988) (holding that generally the presence of aggravating circumstances permits an upper limit of double the guidelines' presumptive sentence).
This sentence was within the trial court's discretion because the court found, and the evidence shows, that Moreno is a patterned sex offender and that multiple factors aggravated the seriousness of his offense.
Patterned Sex Offender
A patterned sex offender is one whose criminal sexual behavior is so engrained that the risk of reoffending is great without intensive psychotherapeutic intervention or other long-term controls.
Minn. Stat. § 609.1352, subd. 1(a)(3) (1996). Moreno's crime was motivated by his sexual impulses. This may be inferred from the sexual acts he engaged in. He also admitted that he was motivated at least in part by his sexual impulses. He is a danger to the public. Moreno's blame-shifting and minimizing, his anger and aggression, his chemical dependency that is not under control despite five treatments, and his commission of a felony sex crime within three months after his release from prison for a prior sex crime, all attest to his danger to public safety. Based on Moreno's history, admissions, and attitudes, a psychologist expressed his professional judgment that Moreno is a patterned sex offender who expresses his sexuality as a typical rapist and needs long-term controls. This evidence demonstrates that Moreno meets all criteria of a patterned sex offender. Minn. Stat. § 609.1352, subd. 1(a) (1996).
Severe Aggravating Factors
A sentencing court is required to commit a patterned sex offender to the commissioner of corrections
for a period of time that is not less than double the presumptive sentence under the sentencing guidelines and not more than the statutory maximum * * *.
Minn. Stat. § 609.1352, subd. 1(a) (1996). Double the presumptive sentence is 268 months. See Minn. Sent. Guidelines IV (showing presumptive sentence for defendant with four criminal history points is 134 months). The statutory maximum is 30 years. Minn. Stat. § 609.342, subd. 2 (1996). The trial court was required to sentence Moreno to a minimum of a double departure.
A trial court may impose more than double the presumptive sentence if severe aggravating circumstances exist. State v. Glaraton, 425 N.W.2d at 834. Moreno's offense involved multiple aggravating factors. Some factors standing alone might be considered sufficiently severe, but, cumulatively, there can be little doubt that they increased the severity of Moreno's crime.
H.M.M. was a vulnerable child of 12 who had no choice but to accompany her father as he claimed a right to visit her. Moreno created an appearance of security by promising not to harm his daughter. Believing that she was reuniting with a contrite, rehabilitated parent, H.M.M. unwittingly left with a hostile, aggressive, patterned sex offender. He took H.M.M. away from her own home and from the protection of her mother. He cruelly choked her and threatened to kill her as he repeatedly penetrated her. For the second time in her young life, H.M.M. was raped by her own father, and she listened to him blame her for the consequences of his first rape. See Minn. Sentencing Guidelines II.D.2.b (aggravating factors).
Moreno contends that the trial court deprived him of due process when it denied his motion to continue the sentencing hearing.
Continuances are within the court's discretion, and a denial will not be reversed absent a clear abuse of that discretion. State v. Rainer, 411 N.W.2d 490, 495 (Minn. 1987). Due process requires that a defendant have notice of a sentencing proceeding and opportunities to be heard and to cross-examine witnesses. State v. Adams, 295 N.W.2d 527, 535 (Minn. 1980).
On May 20, 1998, the trial court scheduled the sentencing for June 22, 1998, and ordered a psychological examination. Moreno underwent a sex-offender evaluation on June 1, 1998. On June 5, 1998, the state sent to Moreno its notice of intent to move for a sentencing guidelines departure. The department of corrections prepared a presentence investigation report on June 10, 1998 and recommended a doubled sentence. The state, on June 15, 1998, sent to Moreno its memorandum supporting sentencing of Moreno under the patterned sex-offender statute. The sex offense evaluation was prepared on June 18, 1998.
We are not aware of any reason Moreno could not have had an independent evaluation prior to the sentencing. Moreover, he was aware well before the sentencing that the state would contend he was a patterned sex offender. Nothing in the record suggests that the court deprived him of an opportunity to examine witnesses or to be heard at the sentencing. We find no clear abuse of discretion.
 Minn. Stat. § 609.1352, subd. 1(a)(3) (1996), was repealed in 1998. 1998 Minn. Laws ch 367, art 6, § 16. The repealed statute was replaced by Minn. Stat. § 609.108, subd. 1(a)(3) (1998).