This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-99-2092

 

State of Minnesota,

Respondent,

 

vs.

 

Randall Mark Spears,

Appellant.

 

Filed May 9, 2000

Affirmed

Anderson, Judge

 

 

Scott County District Court

File No. 9510941

 

 

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

 

Thomas J. Harbinson, Scott County Attorney, Michael J. Groh, Assistant County Attorney, Scott County Government Center JC340, 200 Fourth Avenue West, Shakopee, MN  55379 (for respondent)

 

John M. Stuart, State Public Defender, Ann Brom McCaughan, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN  55414 (for appellant)

 

 

            Considered and decided by Peterson, Presiding Judge, Anderson, Judge, and Huspeni, Judge. ^*

U N P U B L I S H E D   O P I N I O N

ANDERSON, Judge

            Appellant challenges the district court’s upward durational departure and consecutive sentencing on his kidnapping conviction.  Appellant argues that the district court impermissibly used the same aggravating factors to justify a durational departure on both his criminal sexual conduct conviction and his kidnapping conviction.  In addition, appellant contends there were no severe aggravating factors and that his total sentence of 540 months unfairly exaggerates the criminality of his conduct.  Because (1) district court did not impermissibly use the aggravating factors to durationally depart on the kidnapping charge;  (2) severe aggravating factors justify a consecutive sentence; and (3) the total sentence does not unduly exaggerate the criminality of appellant’s conduct, we affirm. 

FACTS

            Appellant Randall Spears met the victim, R.H., at a south Minneapolis bar in July 1995.  R.H. and appellant drank, talked, and smoked a marijuana joint together. Later that evening, R.H. and appellant left the bar and went to a local fast food restaurant.  After they ate, R.H. asked appellant to take her home.  Appellant told R.H. that he wanted to show her a pretty spot where they could view the city.   R.H. repeatedly asked to go home and said she did not want to see the city.  After driving for approximately 20 minutes, appellant pulled off the main road and leaned over to kiss R.H.  R.H. pushed him away and grabbed for the door, but she was stopped from leaving when appellant punched her in the face twice, and told her that this was “going to happen no matter what.”  Appellant choked R.H. while she was crying hysterically and forced her into the backseat.  R.H. moved toward the sunroof, but appellant told her that she wouldn’t get very far and that he would kill her if she did not cooperate.  Appellant demanded that R.H. take off her shorts and told her that she could take this the “easy way or the hard way.”  Appellant then forced his penis into R.H’s vagina while she screamed and cried.  Even though R.H. was menstruating appellant made R.H. perform oral sex on him after he had vaginally penetrated her. 

After appellant vaginally penetrated R.H. a second time, R.H. asked if she could go to the bathroom.  R.H. was planning to escape, but appellant stood next to her while she squatted on the ground.  The two went back into the car and appellant again told R.H. to get into the backseat.  R.H. went into the backseat, took off her shorts, and started to cry.  Appellant told R.H. “if you don’t quit crying I am going to f-ing kill you.”  R.H. begged for her life as appellant vaginally penetrated her a third time.

After the third incident, appellant began to drive back to Minneapolis.  Appellant pulled off the freeway, stating that he needed to urinate.  As the car pulled to a stop R.H. fought her way out of the car.   R.H. ran to a nearby house and pounded on the door while screaming “help me, help me.”  Appellant pulled away in his car.   A resident called the police and allowed R.H. to enter the resident’s home.  Another neighborhood resident also heard R.H. screaming, saw a car speeding away, and called 911. 

Appellant was convicted of six counts of criminal sexual conduct and two counts of kidnapping.  The district court imposed six concurrent life sentences for the criminal sexual conduct convictions but imposed no sentence for the two kidnapping convictions.  In 1997, the court of appeals: (1) vacated appellant’s conviction for three counts of criminal sexual conduct and one count of kidnapping; (2) reversed five of appellant’s six sentences for criminal sexual conduct because the three acts were committed in the course of a single behavioral incident; (3) vacated the life sentence; and (4) remanded for resentencing. 

On remand, the district court held that appellant’s past behavior indicated a pattern of sexual assault and sentenced appellant to two consecutive 40-year sentences, one for first degree criminal sexual conduct under Minn. Stat. § 609.342, subd. 1(e)(i) (1994) and one for kidnapping under Minn. Stat. § 609.25, subd. 2(2) (1994).  In 1999, this court again reversed and remanded, holding that the consecutive 40-year sentences were an impermissible expansion of the original sentence.

Appellant was sentenced for a third time in September 1999.  The district court sentenced appellant under Minn. Stat. § 609.1352 (1994),^[1] the patterned sex offender statute, to a 40-year sentence for the first-degree criminal sexual conduct conviction. The district court also imposed a consecutive, 60-month sentence for the kidnapping conviction after finding that there were severe aggravating factors.  This represented an eight-month upward durational departure from the 52-month presumptive term.  The two sentences total 540 months. 

D E C I S I O N

Appellant argues that the district court erred in imposing the eight-month durational departure on his kidnapping sentence.  This court reviews sentencing departures under an abuse of discretion standard.  State v.  Evans, 311 N.W.2d 481, 483 (Minn. 1981).  A district court may durationally depart when there is evidence of substantial and compelling aggravating factors.  Sentencing Guidelines II.D.01.   The district court cited the following aggravating factors: gratuitous threats to harm and kill R.H., watching the victim while she attempted to urinate, forcing R.H. to perform fellatio on him when his penis had her menstrual blood on it, and grabbing the victim’s neck when she tried to escape.

Appellant contends that the district court had no basis for an upward departure when imposing the kidnapping sentence because, he argues, the district court impermissibly used the same aggravating factors supporting the criminal sexual conduct sentence to justify the kidnapping departure.  A district court may not use the same set of aggravating factors to justify an upward departure on both a criminal sexual conduct sentence and an aggravated sentence for the kidnapping, which was incidental to the rape.  Cooper v. State, 565 N.W.2d 27, 34 (Minn. App. 1997) review denied (Minn. Aug. 5, 1997). 

In this case, the district court did not solely rely on aggravating factors when imposing the 40-year sentence for the criminal sexual conduct conviction.  The district court sentenced appellant under the patterned sex offender statute Minn. Stat. § 609.1352. That provision permits the district court to impose a sentence up to the statutory maximum of 40 years regardless of whether or not there are aggravating factors.  See State v. Halvorson, 506 N.W.2d 331, 339 (Minn. App. 1993) (severe aggravating circumstances are not necessary to support imposition of sentence greater than double the presumptive term when the offender is sentenced under patterned sex offender statute).  The district court did not need to use the aggravating factors to support the sentence for criminal sexual conduct departure and therefore the factors may be considered when sentencing on the kidnapping charge.

            When sentencing a defendant for kidnapping the court may consider the events that occurred during the kidnapping.  State v. Butterfield, 555 N.W.2d 526, 532-33 (Minn. App. 1996) review denied (Minn. Dec. 17, 1996).  But a court may not rely on the elements of a criminal sexual conduct charge to depart on the kidnapping charge if the defendant was also sentenced for criminal sexual conduct.  See Id. at 533.  However, when acts that aggravate the kidnapping are not necessary to satisfy the elements of another crime committed during the kidnapping, although there may be alternate ways of satisfying the elements, we believe that those actions may be used as aggravating factors to depart from the sentencing guidelines on a kidnapping charge.  C.f. State v. Felix, 410 N.W.2d 398, 401 (1987) (in a first degree assault case, where great bodily harm is an element of the offense, the district court characterized some of defendant’s actions as aggravating factors even though the actions could have been used to satisfy an element of the assault offense) review denied (Minn. Sept. 29, 1987).  R.H. was subjected to beatings, threats and humiliating acts apart from the sexual conduct itself.  The district court did not err in considering these factors when sentencing on the kidnapping charge; these factors justify the eight-month durational departure on the kidnapping conviction.

II.

In addition to the durational departure, appellant also challenges the consecutive sentencing.  When a defendant is sentenced for both kidnapping and a crime that was committed during the kidnapping, the sentences are presumed to be concurrent. Halvorson, 506 N.W.2d at 340.  The district court may order that the sentences imposed for kidnapping and an offense committed during the kidnapping run consecutively, but such a sentence is a departure from the guidelines and must be supported by severe aggravating factors that would justify imposition of a term longer than twice the presumptive sentence.  Id.  Whether consecutive sentences should be imposed is generally within the discretion of the district court.  State v. Branson, 529 N.W.2d 1, 4 (Minn. App. 1995), review denied (Minn. Apr. 18, 1995).  A reviewing court must determine whether or not a departure is justified based on its "collective collegial experience in reviewing a large number of criminal appeals from all the judicial districts."  State v. Smallwood, 594 N.W.2d 144, 157  (Minn. 1999) (citation omitted). 

Although there is no clear line between what constitutes aggravating factors verses severe aggravating factors, we find that the aggravating factors of this case, when viewed together, rise to the level of severe aggravating factors that would justify the imposition of a term longer than twice the presumptive sentence.  R.H. was forced to perform fellatio on appellant even though she was menstruating and appellant had just vaginally penetrated her, R.H. was hit in the face, choked and threatened with death.   Multiple penetrations alone have been held to support a double durational departure.   See State v. Allen, 482 N.W.2d 228, 232 (Minn. App. 1992), review denied (Minn. Apr 13, 1992).   We believe that the multiple penetrations, the beatings, the threats, and the demeaning acts all conducted by appellant in this case rise to the level of severe aggravating factors sufficient to justify a consecutive sentence.

Based on our collegial judgment we conclude that the district court did not abuse its discretion in finding severe aggravating factors sufficient to support both an upward durational departure and consecutive sentences.

III.

Appellant also argues that the district court’s consecutive sentence for criminal sexual conduct and kidnapping unduly exaggerates the criminality of his actions.  This court may modify a consecutive sentence if it unfairly exaggerates the criminality of the defendant’s conduct.  State v. Norris, 428 N.W.2d 61, 70 (Minn. 1988).  Unlike Norris, this case involves a statute that legislatively approves the imposition of a 40-year sentence for patterned criminal sexual conduct.  In this case, the 40-year sentence under the patterned sex offender statue is within the district court’s discretion, and the consecutive five-year term for kidnapping is justified by the many severe aggravating factors.  Appellant’s sentence does not unduly exaggerate the criminality of his conduct.

Appellant also argues that his sentence is the equivalent of a life sentence which, he argues, was held to be inappropriate in this case by the court of appeals in 1997.  Appellant is mistaken about this court’s previous holding.  In 1997, this court determined only that appellant was not subject to the mandatory life sentence provisions of Minn. Stat. § 609.346 (1996).²  This court did not comment on the appropriateness or inappropriateness of the life sentence in appellant’s case, only that he could not be sentenced under the particular statute.

The 540-month sentence does not unduly exaggerate the criminality of the appellant’s actions.

Affirmed.