Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

John G. Westrick, Marcia McDowall-Nix, Westrick & McDowall-Nix, P.L.L.P., 400 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for Appellant)

Robert D. Miller, Robert D. Miller & Associates, 206 Textile Building, 119 North Fourth Street, Minneapolis, MN 55401 (for Appellant)

Considered and decided by Lansing, Presiding Judge, Short, Judge, and Klaphake, Judge.

This appeal is from a judgment of conviction and sentence for first degree and third degree criminal sexual conduct. Minn. Stat. §§ 609.342, subd. 1(b), 609.344, subd. 1(e)(1996). We conclude the evidence is sufficient to sustain the conviction for first but not third degree criminal sexual conduct and that the district court did not abuse its discretion in the challenged procedural, evidentiary, or sentencing determinations. We therefore affirm in part and reverse in part.

The district court granted the state's motion to admit Spreigl evidence of Condon's conduct against three other boys, D.L., B.G., and E.S., after ruling that the offenses charged against B.G. and E.S. should be tried separately.

D.F. testified that the first act of sexual penetration occurred during a trip to a county fair, when he stayed overnight with Condon at a hotel. He believed he was under sixteen when this occurred. But he also testified that he was "pretty sure" that it occurred during a visit to the Stevens County Fair. The defense presented evidence that the hotel where Condon had stayed in Stevens County when D.F. was under sixteen years old did not have the features and amenities described by D.F. The court later allowed the state to amend the complaint to delete the reference to Stevens County, leaving Count II to allege only that the first sexual penetration occurred in Minnesota.

The defense admitted that sexual penetration occurred, but argued that it did not happen until D.F. was sixteen years old. Defense counsel also argued that the state did not prove third degree criminal sexual conduct because D.F. testified it occurred at a party at Condon's apartment, and Condon was not at that time exercising any authority over D.F.

The jury found Condon guilty of both counts. The district court sentenced him to 197 months for the first degree criminal sexual conduct, a double upward departure, citing as aggravating factors Condon's prior conviction for fourth degree criminal sexual conduct, the vulnerability of the victim, and Condon's extensive planning in committing the offense. The court sentenced Condon to a consecutive stayed sentence of 23 months for third degree criminal sexual conduct. On appeal Condon challenges the (1) propriety of the amendment to Count II, (2) admissibility of Spreigl evidence, (3) sufficiency of the evidence, and (4) imposition of a sentencing departure.

A special venue statute permits "an incident of alleged child abuse" to be prosecuted either where it occurred or where the child is found. Minn. Stat. § 627.15 (1996). Condon was charged and tried in Hennepin County. The site of the sexual penetration was not an essential element of the offense, and the amendment deleting "Stevens County" from Count II did not result in charging a different offense. Cf. Ruberg, 428 N.W.2d at 490 (when the date is not an essential element of the offense the court may allow an amendment of the complaint to comport with the evidence presented at trial). Moreover, the amendment did not prejudice Condon's substantial rights. He could still argue, and did, that the defense evidence in contradiction to D.F.'s testimony made D.F.'s recollection of location too vague and uncertain to prove beyond a reasonable doubt that D.F. was under sixteen when the first sexual penetration occurred. Deleting Stevens County from the complaint simply removed one reminder of the state's initial theory of the date of that offense. The critical issue of whether D.F. was less than sixteen years old at the time of the offense was fully presented to the jury. The amendment did not prejudice Condon's substantial rights.

Condon conceded for the record that sexual penetration occurred. But this concession was made in chambers. The record does not show that any stipulation was presented to the jury, or that Condon offered to stipulate in front of the jury. Thus we need not address the issue whether a defendant may exclude Spreigl evidence by stipulating to an element of the offense.

The trial court ruled that the Spreigl offenses were admissible to prove the disputed issues of D.F.'s age at the time of the first offense, and whether Condon was in a position of authority over D.F. Condon's statement to police implied that he was careful not to have sex with D.F. until D.F. was of age. This position was reinforced by his defense that primarily challenged evidence of D.F.'s age. The Spreigl victims were nine, thirteen and sixteen years old at the time of the offenses against them. E.S., the nine-year-old, was Condon's stepson, and we note that Condon occupied a considerably different "position of authority" over him from that he allegedly did over D.F. Even though the admission of testimony from E.S. was questionable, we conclude that the Spreigl evidence as a whole was admissible both to show Condon's use of his position of authority over other young aspiring magicians and to negate the claim that he would not have engaged in sex with an underage youth.

We conclude that there is sufficient evidence that D.F. was under sixteen when the first sexual penetration occurred and that Condon used his position of authority to cause him to submit. D.F. dated the first sexual penetration not only from the Stevens County Fair but also as occurring before he first tried marijuana, and he was certain that he first tried marijuana when he turned sixteen. The weighing of the two methods of calculating D.F.'s age at the time of the acts alleged in Count II is for the jury. Although the defense succeeded in calling into question one of those methods of calculation, the other method remained and was sufficient evidence to prove that element of the offense.

"Position of authority" is defined to include "any duty or responsibility" regarding the supervision of a child, "no matter how brief." Minn. Stat. § 609.341, subd. 10 (1996). A defendant has been held to be in a position of authority over a babysitter whom he and his wife had been employing for a month. State v. Hall, 406 NW.2d 503, 505-06 (Minn. 1987). Condon was responsible for supervising D.F. for entire weekends during numerous out-of-town trips. The evidence is sufficient to establish that he was in a position of authority over D.F.

The state also charged the use of a position of authority to cause submission for the third degree criminal sexual conduct offense. The evidence does not provide an adequate basis for a conviction on that charge. The evidence established that D.F. was partying at Condon's apartment with a group of people, drinking and smoking dope, when he passed out and awoke to find Condon performing oral sex on him. D.F. testified he was not conscious until the end of the sexual activity. Although the state could have charged Condon under another clause of the statute, there is insufficient evidence to support the conviction on Count III as charged, and Condon's conviction for third degree criminal sexual conduct must be reversed and vacated, along with the consecutive stayed 23-month sentence for that offense.

In sentencing for criminal sexual conduct, the court may depart if the defendant has a prior felony conviction for criminal sexual conduct, as Condon has for a 1976 offense. Minn. Sent. Guidelines II D. 2.b.(3). This factor has been held sufficient to support a double departure. See State v. Lomax, 437 N.W.2d 409, 409 (Minn. 1989). The other two factors, particularly victim vulnerability and planning, relied in part on the Spreigl offenses and on the use of a "position of authority," which is an element of the offense. But the trial court properly cited the fact that Condon furnished alcohol to the underage D.F. and that D.F., completely dependent on Condon's supervision during the weekend trip, was particularly vulnerable. See e.g. State v. Gettel, 404 N.W.2d 902, 906 (Minn. App. 1987) (rape victim's intoxication could be considered as grounds for departure), review denied (Minn. June 26, 1987). The district court did not abuse its discretion in imposing a double departure for first degree criminal sexual conduct.

Affirmed in part and reversed in part.