This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-99-1800

 

 

State of Minnesota,

Respondent,

 

v.

 

Ishmael Ivan Wilson,

Appellant.

 

Filed March 14, 2000

Affirmed

Huspeni, Judge^*

 

Ramsey County District Court

File No. 1184384

 

 

Mike Hatch, Minnesota Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)

 

John M. Stuart, Minnesota Public Defender, Lyonel Norris, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55455 (for appellant)

 

 

            Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N

HUSPENI, Judge

            Ishmeal Ivan Wilson appeals from his sentence for terroristic threats, and argues that the double departure from sentencing guidelines was not supported by the aggravating factors cited by the district court.  Because appropriate factors in the record, although not cited by the district court, support the departure, we affirm.

FACTS

            Appellant Ishmeal Ivan Wilson banged on the front door of a duplex apartment his wife Lorraine shared with the couple’s daughter Maria; Maria did not let Wilson in.  He then proceeded to the back door and kicked it in threatening to “bust their heads.” 

            Upon gaining entry to the home, Wilson picked up a knife and bottle.  He swung the knife at Lorraine and struck her in the head twice with the bottle, cutting her near the eye.  He also stabbed Maria in the leg with the knife.  Maria’s two children, ages three and four, were in the apartment and witnessed the assaults.

            Wilson pleaded guilty to terroristic threats with knowledge that an upward departure from the presumptive 24-month sentence would be sought by the state.  The state sought a double departure based on four factors:  (1) the crime took place in the victims’ zone of privacy; (2) the victims suffered an injury; (3) the history of chronic and repeated domestic assaults; and (4) Wilson’s lack of remorse.  The district court sentenced Wilson to 48 months’ imprisonment, relying on all four of the factors cited by the state.

D E C I S I O N

            A sentencing court may depart from the presumptive guidelines sentence only if the case involves substantial and compelling circumstances.  Minn. Sent. Guidelines II.D.  If aggravating factors are present, a sentencing court has broad discretion to depart from the sentencing guidelines.  State v. Best, 449 N.W.2d 426, 427 (Minn. 1989).  A district court’s decision to depart from the sentencing guidelines will not be reversed on appeal absent an abuse of discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).

            When reasons for the departure are stated, the reviewing court will “examine the record to determine if the reasons given justify the departure.”  Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).  The departure will also be allowed “[i]f the reasons given are improper or inadequate, but there is sufficient evidence in the record to justify the departure * * * .”  Id. 

The district court needs only one valid basis to support an upward departure from sentencing guidelines.  See State v. Jeno, 352 N.W.2d 82, 85 (Minn. App. 1984) (one reason given for the upward departure).  Here, the district court listed four.  Wilson challenges each basis, however, and we find merit in his arguments. 

Wilson alleges that there was no zone of privacy violation because he also lived at the duplex.  The record is not clear regarding the Wilsons’ living arrangements.  Wilson claims to have had a key to the duplex and at least once listed the duplex as his address.  His actions on the day of the offense, however, could indicate that he was unable to gain access to the home without permission.  (He eventually broke in the back door after knocking on the front door in an attempt to enter.)  There is no evidence of the existence of a protective order restraining Wilson from entering the apartment, nor is there evidence that Wilson was not living in the apartment at the time of the offense.  Because the record is unclear, we are reluctant to affirm the district court’s decision to upwardly depart from the presumptive sentence based on the zone of privacy factor.

Our concern also extends to the other three factors stated by the sentencing court.  The assault charge was dismissed and Wilson did not admit to committing an assault.  Therefore, it is doubtful that the victims’ injuries could support departure.  See State v. Larkins, 479 N.W.2d 69, 74-75 (Minn. App. 1991) (holding that where a charge is dismissed on one charge in exchange for a guilty plea on another, conduct supporting the dismissed charge could not be used to support departure unless defendant admitted to that conduct). 

A lack of remorse “generally bears only on whether a trial court will depart dispositionally, not * * * durationally.”  State v. Haugh, 585 N.W.2d 393, 397-98 n.5 (Minn. 1998) (citing State v. Back, 341 N.W.2d 273, 275 (Minn. 1983)).  While lack of remorse may relate to the seriousness of the crime committed, id. (citing State v. McGee, 347 N.W.2d 802, 806 n.1 (Minn. 1984)), we are reluctant to endorse lack of remorse as a basis for departure on the facts of this case and in the presence of Wilson’s continued assertions that he acted in self-defense. 

Reliance by the district court on the presence of ongoing abuse is also weak.  The abusive history in this case is uncharged or unproven conduct and a history of abuse is not documented in Wilson’s criminal record. 

Even though we reject the four factors cited by the district court as justifying departure, we nonetheless affirm that departure.  Two additional factors identified by the state, although not cited by the district court, meet the requirement of Williams.  There were both multiple victims and children present during the offense.  See generally State v. O’Brien, 429 N.W.2d 293 (Minn. App. 1988) (multiple victims), review denied (Minn. Nov. 16, 1988); State v. Dalsen, 444 N.W.2d 582, 584 (Minn. App, 1989), review denied (Minn. Oct. 13, 1989) (children present).  Multiple victims may serve as an aggravating factor warranting upward departure.  State v. Murphy, 545 N.W.2d 909, 917 (Minn. 1996).  Also, the offense occurred in the presence of Maria’s two young children, then ages three and four.  The presence of a child has consistently been held an aggravating factor supporting upward departure.  State v. Wickstrom, 405 N.W.2d 1, 7 (Minn. App. 1987), review denied (Minn. June 30, 1987).

Because there is evidence in the record of both multiple victims and the presence of children, either of which support the sentencing departure, we affirm the distict court’s decision to double the presumptive sentence.

            Affirmed.