Hubert H. Humphrey, III, State Attorney General, Suite 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101

Susan Gaertner, Ramsey County Attorney, Jessica S. McConaughey, Assistant County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for Respondent)

John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, Suite 600, 2829 University Avenue S.E., Minneapolis, MN 55414 (for Appellant)

Considered and decided by Lansing, Presiding Judge, Crippen, Judge, and Peterson, Judge.

We affirm the sentencing court's upward departure from the presumptive sentence under the Minnesota Sentencing Guidelines.

Appellant's shots were fired from a place that was within ten feet of a classroom window at the nearby school. Children in the classroom became frightened when they heard the gunshots.

Appellant pleaded guilty to assault in the second degree. The court imposed a 48 month sentence, 12 months over the presumptive 36 month sentence. The state requested a greater upward departure, but the court refused, citing appellant's remorse and the fact that he was an "intelligent person capable of great good." Explaining its sentence, the court said:

The record should also indicate that this is a durational departure from the Minnesota Sentencing Guidelines and the reasons for the departure are as follows: The offense was committed in a school zone. The act was committed in a manner in which the safety of children in the school and other individuals including teachers in the school were placed in harm and by this manner of the commission of the offense there were additional victims whose lives were placed in jeopardy.

Appellant claims that the presence nearby of school children is not a proper aggravating factor under the sentencing guidelines and requests that his sentence be reduced to 36 months.

Among departure factors stated in the guidelines, appellant's actions best fall under the category of crimes involving vulnerable victims. Minn. Sent. Guidelines II.D.2.(b)(1). Appellant claims that the mere fact that children were in the vicinity at the time of his crime does not make them "victims" and that their proximity and particular vulnerability are not aggravating circumstances as a matter of law. State v. Erickson, 313 N.W.2d 16, 18 (Minn. 1981).

In Erickson, the Minnesota Supreme Court held that circumstances did not justify an upward departure from the presumptive sentence for a sexual assault where the victim was raped in the presence of her 21-month-old son. Id. The court emphasized that "[Minn. Sent. Guidelines II.D.2.(b)(1)] applies when the victim of the crime is particularly vulnerable" and "it could be applied here only to the charge of false imprisonment of the child." Id. (emphasis in original). In the circumstances of the instant case, appellant claims that the particular vulnerability exception could be applied only to the charge of reckless discharge of a firearm in a schoolyard, a charge that the state had dropped pursuant to his plea agreement.

Appellant was aware that Rahman Mann might shoot him but disregarded the possibility that Mann could have returned fire in the direction of the classroom window. In fact, appellant believed that Mann might shoot at him. In Erickson, the child was never placed in physical jeopardy by the sexual assault. Here, the children and teachers were placed at risk by appellant's actions and justifiably feared for their own safety.

Moreover, Minnesota courts have permitted upward departures where the conduct underlying the offense was "particularly serious and represented a greater than normal danger to the safety of other people." State v. McClay, 310 N.W.2d 683, 685 (Minn. 1981); see also State v. Profit, 323 N.W.2d 34, 36 (Minn. 1982) (holding that upward departure justified where children were present when violent offense was committed and defendant knew of their presence); State v. Anderson, 463 N.W.2d 551, 553 (Minn. App. 1990) (holding that upward departure justified where defendant fired a gun in a mixed residential and commercial area where at least six people were in the immediate area), review denied (Minn. Jan. 14, 1991); Williams v. State, 365 N.W.2d 370, 372 (Minn. App. 1985) (holding that upward departure justified where the defendant threatened and endangered at least 13 other people besides the victims referred to in the charged offenses, including two children, while robbing a convenience store). In all of the above cases, Minnesota courts have emphasized that an upward departure is proper where bystanders, even if not immediate victims of the offense, were somehow placed at risk.

Finally, the list of aggravating circumstances in section II.D.2.(b) of the guidelines is nonexclusive. Because gunfire in the vicinity of schools is inherently dangerous due to the presence of children, the fact that appellant committed a violent crime within a statutorily defined "school zone" may in and of itself be a proper "substantial and compelling" aggravating circumstance that sentencing courts may consider, regardless of whether or not the children inside were technically "victims." See Minn. Sent. Guidelines II.D.2. (list is nonexclusive).

Affirmed.