This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-371

 

 

State of Minnesota,

Respondent,

 

vs.

 

Robert Patrick Hill,

Appellant.

 

 

Filed March 27, 2007

Affirmed

Lansing, Judge

 

 

Ramsey County District Court

File No. K6-05-1852

 

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

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

 

John Stuart, State Public Defender, Susan Andrews, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414 (for appellant)

 

 

            Considered and decided by Lansing, Presiding Judge; Peterson, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

On appeal from conviction of first-degree criminal sexual conduct for sexually penetrating his girlfriend’s eight-year-old daughter, RBL, Robert Hill challenges the admissibility of evidence that he was previously convicted of similar conduct and also challenges the district court’s upward sentencing departure.  Because the evidence of the previous conviction was properly admitted on the issue of identity and the upward departure was supported by substantial and compelling circumstances, we affirm.

F A C T S

            Robert Hill began dating RBL’s mother in August 2002.  Hill lived in Minneapolis but stayed several nights a week at RBL and her mother’s house in Maplewood.  RBL’s teenage brother and younger sister also lived in the house.

            In January 2005, RBL reported to her mother that Hill had been touching her inappropriately.  RBL was interviewed by medical professionals and the police.  Based on RBL’s reports, Hill was charged with first-degree criminal sexual conduct under Minn. Stat. § 609.342, subd. 1(a) (2004).

            At trial, RBL’s testimony indicated that Hill would enter her bed and penetrate her vaginally and anally.  Hill engaged in this conduct, RBL said, “A lot.  Um, more than 20 days.”

            RBL’s mother testified that RBL identified Hill as the person who had touched her.  RBL’s mother also testified that sometime in 2000 her cousin stayed in her house for about two weeks.  Later, the cousin was convicted for sexually abusing children.

            A nurse testified about her interview with RBL.  In the interview, RBL described times when somebody touched her inappropriately.  One was “in her bed and one on a couch where someone came into the room when she was sleeping.”  The nurse asked who did this and RBL responded, “I think, what I think it is, I think it’s, it’s my mom’s boyfriend.  I don’t but um, um, we still don’t know.”

            A police officer also testified about her interview with RBL.  One reason the officer interviewed RBL was to clarify who abused her.  RBL told her that she knew the person was not her brother because she knew where her brother had been when the touching happened.  The officer testified, “At one point she did say she had—she sneaked a peak, and she had seen Robert [Hill] sitting across from her in a chair and that he came walking towards her.  She shut her eyes and she knew what was going to happen.”

            After the state had presented its case, the district court granted the state’s motion to present evidence about Hill’s 1996 conviction for first-degree criminal sexual conduct.  A portion of Hill’s guilty plea was read to the jury.  Hill had been living with a woman in Bemidji in 1995.  The woman had two daughters, who were then between ages seven and nine.  In his guilty plea, Hill admitted to sexually penetrating both daughters.

            The jury found Hill guilty of first-degree criminal sexual conduct.  Hill waived a sentencing jury and was sentenced by the judge.  Although the presumptive sentence was 144 months, the presentence investigator recommended 360 months.  The district court found beyond a reasonable doubt that Hill committed multiple incidents of penetration and that these crimes violated RBL’s zone of privacy.  Based on these findings, the district court imposed a double durational departure and sentenced Hill to 288 months.

            Hill now appeals his conviction and his sentence.

D E C I S I O N

I

            A district court’s decision to admit evidence of the commission of other crimes is reviewed for an abuse of discretion.  State v. Washington, 693 N.W.2d 195, 200 (Minn. 2005).  This evidence, referred to as Spreigl evidence, is admissible to establish “motive, intent, absence of mistake, identity, or a common scheme or plan.”  State v. Asfeld, 662 N.W.2d 534, 542 (Minn. 2003).  It is inadmissible “to prove the character of a person in order to show action in conformity therewith.”  Minn. R. Evid. 404(b).  In a criminal prosecution, Spreigl evidence should only be admitted when (1) the state gives notice of its intent to use the evidence, (2) the state clearly indicates what the evidence is being offered to prove, (3) the evidence is clear and convincing that the defendant participated in the other act, (4) the evidence is relevant and material, and (5) the probative value of the evidence is not outweighed by its potential for unfair prejudice.  State v. Stewart, 643 N.W.2d 281, 296 (Minn. 2002).

            Hill does not dispute that the first three requirements were satisfied.  His challenge is limited to whether the evidence of his crimes in Bemidji was relevant and whether it was unduly prejudicial.  We conclude that the evidence was relevant and not unduly prejudicial. 

            First, the Spreigl evidence was relevant to the issue of identity.  Because Hill committed a similar crime in a similar way against similarly situated victims, it is more likely that Hill is the person who abused RBL.  See Minn. R. Evid. 401 (defining “relevant evidence” as evidence that makes a consequential fact “more probable or less probable than it would be without the evidence”).

            The Spreigl evidence could, of course, have been used for other purposes.  In deciding whether the evidence is relevant to a legitimate purpose, the district court “should not simply take the prosecution’s stated purposes for the admission of other-acts evidence at face value.”  State v. Ness, 707 N.W.2d 676, 686 (Minn. 2006).  In this case, however, the evidence was introduced to prove identity, a legitimate purpose, and the district court gave an instruction limiting its use to that purpose.  Although the evidence would be inadmissible to prove Hill’s character, it is still relevant because:

The rule is a specific application of the “rule of multiple admissibility”—evidence that is inadmissible for one purpose (inference from intermediate inference of bad character to inference that defendant acted in conformity therewith) should not be excluded if it is properly admissible for some other purpose (unless the trial court, in the exercise of discretion under Rule 403, decides to exclude the evidence).

 

State v. Wermerskirchen, 497 N.W.2d 235, 239-40 (Minn. 1993).  “If the evidence is offered for a legitimate purpose, then the exclusion sanction of Rule 404(b) does not apply.”  State v. Frisinger, 484 N.W.2d 27, 32 (Minn. 1992).  The evidence of Hill’s previous crime was therefore relevant despite other possible uses.

            Second, the probative value of the evidence was not outweighed by the potential for unfair prejudice.  The evidence of Hill’s previous crime was highly probative of the identity of RBL’s abuser.  Hill had previously moved in with a woman and then abused the woman’s daughters.  In this case, Hill was dating RBL’s mother, and RBL was then abused in a similar way.  The daughters of the woman with whom Hill previously resided and RBL were about the same age.  These similarities are highly probative of whether Hill was the abuser in this case.

            Furthermore, the state’s evidence on identity was weak.  In determining whether Spreigl evidence is unduly prejudicial, courts consider the state’s need for the evidence.  Ness, 707 N.W.2d at 690.  The state needed the evidence of Hill’s prior conviction for three reasons.  First, the only person who identified Hill as the perpetrator was RBL, who was only nine years old at the time of the trial.  Second, at one point in the investigation, RBL had stated that “we still don’t know” whether Hill was the perpetrator.  Third, there was evidence that another child abuser had lived in the house.  The district court could therefore conclude that the probative value of the Spreigl evidence was not outweighed by the potential for unfair prejudice.

            The evidence of Hill’s prior conviction of first-degree criminal sexual conduct was therefore relevant and not unduly prejudicial.  Because the other requirements for Spreigl evidence were satisfied, the district court did not abuse its discretion by admitting the evidence.

II

            We review departures from the presumptive sentences provided by the Minnesota Sentencing Guidelines for an abuse of discretion.  State v. Thompson, 720 N.W.2d 820, 828 (Minn. 2006).  A sentencing departure must be justified by substantial and compelling circumstances in the record.  State v. Losh, 721 N.W.2d 886, 895 (Minn. 2006).

            In sentencing Hill the district court departed from the presumptive sentence because (1) the crime invaded the victim’s zone of privacy and (2) involved multiple incidents of penetration.  The first reason alone is sufficient to support the upward departure.

            An upward departure is appropriate when the defendant, in committing criminal sexual conduct, “invades the zone of privacy that surrounds the victim’s home.”  State v. Kindem, 338 N.W.2d 9, 18 (Minn. 1983); State v. Van Gorden, 326 N.W.2d 633, 635 (Minn. 1982).  The district court found beyond a reasonable doubt that at least one of the acts occurred in RBL’s bed.  An eight-year-old girl’s bedroom is within her zone of privacy.  See State v. Griffith, 480 N.W.2d 347, 351 (Minn. App. 1992), (finding that victim’s bedroom constituted zone of privacy even though it was in attacker’s house), review denied (Minn. Mar. 19, 1992).  Although Hill was invited into RBL’s home by RBL’s mother, Hill’s acts could still violate RBL’s zone of privacy.  See State v. Copeland, 656 N.W.2d 599, 603 (Minn. App. 2003) (distinguishing case in which victim invites attacker into home), review denied (Minn. Apr. 29, 2003). 

            Hill argues that a departure based on a violation of the victim’s “zone of privacy” is inappropriate because it is typical for the crime charged.  But Hill’s reliance on Taylor v. State, 670 N.W.2d 584 (Minn. 2003), is misplaced.  In Taylor, the defendant had been given an upward departure because he used a position of trust to abuse a child.  Id.at 586.  The court noted that criminal sexual assaults by strangers are viewed “as more serious and aggravated, thereby justifying durational departures.”  Id.at 589 n.6.  The court reasoned that “it would be difficult in most cases to reconcile departures based on both stranger sexual assaults and the more typical position-of-trust assaults.”  Id.  Therefore, the defendant’s position of trust could not be used to justify an upward departure.  Id.at 589.

            First-degree criminal sexual conduct, however, does not always occur in the victim’s bedroom.  When it does, the crime is more serious.  In contrast to the situation in Taylor, the fact that criminal sexual conduct occurs outside the victim’s zone of privacy cannot be used as an aggravating factor.  Because the crime occurred in the victim’s zone of privacy, the crime was more serious than other first-degree criminal sexual conduct cases.

            The district court also based the upward departure on a finding of multiple incidents of penetration.  Hill argues that this finding is inconsistent with his charges.  As Hill correctly notes, he was only charged with one count of criminal sexual conduct under Minn. Stat. § 609.342, subd. 1(a) (2004), and the statute only requires a single act.  Hill relies on the supreme court’s footnote statement that “[c]onduct that is never charged cannot be the basis for additional confinement.”  Taylor, 670 N.W.2d at 588 n.4.  While we doubt this language applies in this case, it is nonetheless difficult to distinguish Taylor on this point.

            We need not, however, decide this issue.  In addition to violating the victim’s zone of privacy, Hill had previously been convicted of first-degree criminal sexual conduct.  That conviction provides an additional ground for upward departure.  Minn. Sent. Guidelines II.D.2.b.(3).  Although the district court did not rely on this factor, we can consider other grounds for departure.  State v. McIntosh, 641 N.W.2d 3, 8 (Minn. 2002).  Because of the zone-of-privacy violation and the previous conviction, the upward departure was based on substantial and compelling reasons and was not an abuse of discretion.

            Affirmed.