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

John M. Stuart, State Public Defender, Susan K. Maki, Assistant Public Defender, 2829 University Ave., S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Willis, Judge.

Aaron L. Washington appeals from an order denying his petition for postconviction relief. Washington, who was convicted and sentenced for first-degree criminal sexual conduct, burglary, and kidnapping, challenges the denial of his request for a jury instruction on intoxication and the sentence imposed. Because sufficient evidence supports the postconviction court's denial of appellant's request for a new trial, but the consecutive sentences imposed for the burglary and kidnapping convictions were an abuse of discretion, we affirm in part, reverse in part, and remand for resentencing.

Washington was charged with two counts of first-degree criminal sexual conduct, one of them requiring proof of personal injury to the victim. First-degree criminal sexual conduct involving bodily harm to the victim is a general intent offense. Id. at 767. We therefore conclude the trial court did not abuse its discretion in denying an intoxication instruction as to first-degree criminal sexual conduct.

Washington was also charged with first-degree burglary (commission of an assault within the building) and kidnapping (facilitating commission of a felony). Because he failed to request a ruling on intoxication as a defense to these other charges, we are not required to address that issue. Nevertheless, we note that the burglary statute, which formerly required a wrongful intent upon entering the building, now requires no specific intent if, as in this case, the assault within the building involved bodily harm. See Minn. Stat. § 609.582, subd. 1 (1994) (amended by 1988 Minn. Laws ch. 712, § 9). And while the analysis of whether kidnapping is a general or specific intent crime is more complicated, defense counsel admitted in closing argument that the jury could not easily be persuaded to acquit on some of the counts because Washington was too intoxicated. Thus, even if the kidnapping statute is construed as requiring specific intent, denial of the intoxication instruction as to that count alone was harmless error. See State v. Shoop, 441 N.W.2d 475, 481 (Minn. 1989) (erroneous refusal to give requested instruction harmless if analysis of record compels conclusion that, beyond "a reasonable doubt," error "did not have a significant impact on the verdict").

Finally, Washington argues that the refusal to give an intoxication instruction denied him his constitutional right to present a defense. We disagree. The United States Supreme Court has held that a state legislature's complete exclusion of voluntary intoxication evidence does not violate due process. See Montana v. Egelhoff, 116 S. Ct. 2013, 2024 (1996). Thus, Minnesota's exclusion of intoxication evidence for general intent crimes does not violate due process.

Generally, severe aggravating circumstances must support a greater-than-double durational departure. See State v. Weaver, 474 N.W.2d 341, 342-43 (Minn. 1991) (only in "rare" case will aggravating circumstances be so severe as to justify greater-than-double departure). However, under Minn. Stat. § 609.346, subd. 4, a court may impose at least a double departure for certain types of first-degree criminal sexual conduct if any aggravating factor is present. Thus, severe aggravating circumstances are not required to support the trial court's durational departure in this case. See State v. Halvorson, 506 N.W.2d 331, 339 (Minn. App. 1993) (greater-than-double departure under patterned sex offender statute did not require severe aggravating circumstances). But the additional departure in the form of consecutive service still requires severe aggravating circumstances. Id. at 340.

Particular cruelty, in the form of the beating Washington administered to the victim, and multiple penetrations are proper aggravating factors. See, e.g., State v. Lamar, 474 N.W.2d 1, 3 (Minn. App. 1991) (double departure supported by multiple penetrations, verbal abuse, death threat, and serious physical injury to rape victim), review denied (Minn. Sept. 13, 1991). But invasion of the zone of privacy may not be considered because it is an element of the offense of burglary on which Washington was separately sentenced. See State v. Coley, 468 N.W.2d 552, 555-56 (Minn. App. 1991). But see State v. Patterson, 511 N.W.2d 476, 478 (Minn. App. 1994) (affirming use of zone of privacy factor to support departure despite separate sentence for burglary, without discussing Coley), review denied (Minn. Mar. 31, 1994). The fact that the sexual offense involved a kidnapping also has been considered by virtue of the separate sentence for kidnapping.

The two aggravating factors properly cited by the trial court, particular cruelty and multiple penetrations, thus relate to the sexual offense, not to the burglary and kidnapping, which were typical or even less serious offenses of those types. Nor was the confinement of the victim or removal to her bedroom atypical for a sexual offense. Cf. State v. Crocker, 409 N.W.2d 840, 844-45 (Minn. 1987) (recognizing that confinement may be incidental to sexual offense, but rejecting argument that separate sentencing is unfair). We therefore conclude that the cited aggravating factors fail to support the departure in the form of consecutive service of the burglary and kidnapping convictions.

We recognize that the legislature has provided for greater-than-double departures, such as the trial court imposed here, for criminal sexual conduct based on a single aggravating factor. See Minn. Stat. § 609.346, subd. 4. Any additional aggravating factors, therefore, would potentially support an additional departure on the other counts. The additional factors in this case, however, are factually confined to the sexual offense and fail to support the degree of departure imposed here.

The sentencing guidelines require proportionality in sentencing. Although the legislature, by enacting Minn. Stat. § 609.346, subd. 4, authorized the statutory maximum sentence imposed here, proportionality requires that the statute's impact be limited to the sexual offense to which it applies. The trial court imposed an aggregate sentence of 494 months, more than triple the presumptive sentence of 146 months if all sentences had been concurrent. The aggravating circumstances, while compelling, do not support the departures in the form of consecutive service for the burglary and kidnapping. We therefore remand for imposition of concurrent sentences on those counts.

Affirmed in part, reversed in part, and remanded for resentencing.