Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for Respondent)

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

John M. Stuart, State Public Defender, Evan W. Jones, Assistant State Public Defender, 2829 University Ave. S.E., Suite 600, Minneapolis, MN 55414-3230 (for Appellant)

Considered and decided by Klaphake, Presiding Judge, Davies, Judge, and Peterson, Judge.

Appellant challenges the trial court's sentencing departure, the identification evidence, and the effectiveness of his trial counsel. We affirm as modified.

C.T. testified that appellant grabbed her from the front and one of the other men grabbed her from behind, putting a gun to her head.[1] The third man taped her arms and legs, made her lie down on the floor, and covered her head with blankets. The men demanded that C.T. tell them where they could find money, kicked a bedroom door in, and broke things all over the house. After a while, the doorbell rang again, and C.T. heard a woman who seemed to be with the men. C.T. was forced to her feet and shuffled to a bedroom. The men took her necklace and $100 from her pocket and then drove away.

When C.T. was able to wriggle her hands out of the tape, she told the oldest child (who had gone into the bathroom with the dog and screamed throughout the whole episode) to run to C.T.'s house. C.T. then brought the other two children, who had slept through everything, to her nearby house as well.

C.T. subsequently described appellant to Wells' brother, Ben, because she thought she knew appellant as his friend. Ben showed her some pictures of friends and she identified appellant. That picture and appellant's name were given to the police. The police later came to C.T.'s house and showed her a photographic lineup. She identified appellant.

The trial court sentenced appellant to 4 years, 10 months, for the burglary and 6 years, 6 months, for the kidnapping. It went on to depart from the sentencing guidelines by running the two sentences consecutively for a total prison term of 11 years, 4 months. With respect to its decision to depart, the trial court stated on the record:

The Court notes that the presence of the minor children in the premises is a significant ground for upward departure, as well as the trauma to the children who were unprotected and without parental supervision or protection at the time of this crime. The Court finds the entire record supports upward departure of consecutive sentences in your case.

On appeal, appellant argues that the court erred at sentencing by: (1) departing from the guidelines; and (2) calculating the consecutive kidnapping sentence using a criminal history score of three, rather than zero. Appellant also argues, by a pro se supplemental brief, that the lineup procedure was flawed, that the victim's identification was suspect because of inconsistencies in her statements, and that he received ineffective assistance of counsel.

whether the defendant's conduct was significantly more or less serious than that typically involved in the commission of the crime in question.

State v. Broten, 343 N.W.2d 38, 41 (Minn. 1984). We hold that the trial court was within its discretion in deciding to depart and impose consecutive sentences.

The vulnerability of a victim due to the presence of children may aggravate an offense for departure purposes because the victim's responsibility for the children is analogous to a reduced physical capacity. State v. Hart, 477 N.W.2d 732, 740 (Minn. App. 1991), review denied (Minn. Jan. 16, 1992); see also State v. Dalsen, 444 N.W.2d 582, 584 (Minn. App. 1989) (departure supported by presence of victim's child in another room), review denied (Minn. Oct. 13, 1989). At the time of the offense, C.T. was baby-sitting three very young children and thus was vulnerable.

The trial court was also within its discretion in relying for departure on the age (six) of the oldest of the three young children, who was present, awake, and extremely frightened during the offense. Minn. Sent. Guidelines II.D.2(b) specifically provides that a victim's vulnerability due to age is an aggravating factor supporting a departure.

These factors alone are sufficient to support the imposition of consecutive sentences.

The state essentially concedes that the kidnapping sentence should normally have been calculated using a criminal history score of zero, but it goes on to argue that the sentence of 6 years, 6 months, was an appropriate additional durational departure. It is clear, however, that the trial court simply made a mistake, overlooking the zero-criminal-history-score rule. Its order plainly states that it was departing by imposing consecutive sentences; it does not suggest in any way that it meant to order an additional durational departure.[2]

We modify the sentence for the kidnapping to 4 years, to be served consecutively to the 4-year, 10-month, burglary sentence.

We must affirm the admission of identification evidence unless the "procedures used were so impermissibly suggestive as to create a 'very substantial likelihood of irreparable misidentification.'" State v. Spann, 287 N.W.2d 406, 407 (Minn. 1979) (quoting Manson v. Brathwaite, 432 U.S. 98, 116, 97 S. Ct. 2243, 2254 (1977). Appellant has not demonstrated such a likelihood here. C.T. stated from the very beginning of the investigation that she recognized appellant as a friend of Wells' brother, Ben. C.T. also identified appellant at trial and again stated that she had seen him before the night of the offense.

whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.

State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). Determinations of "the credibility and weight to be given to the testimony" are for the jury alone. State v. Engholm, 290 N.W.2d 780, 784 (Minn. 1980).

The statements appellant points to are, at the very most, only slightly inconsistent with regard to her memory of the order of events at the beginning of the offense. Such minor inconsistencies do not support reversal of the jury's verdict. See State v. Stufflebean, 329 N.W.2d 314, 319 (Minn. 1983) (minor inconsistencies in "particulars of a traumatic and extremely stressful incident" do not warrant reversal of verdict). C.T.'s description of the events was, in substance, consistent, and the jury was entitled to believe her.

Affirmed as modified.

_________________________________

Judge Jack Davies

August 20, 1997

[ ]¹ Appellant's acquittal on the charge of first-degree aggravated robbery could indicate that the jury did not believe that a gun was actually used in the offense.

[ ]² The state argued for the statutory maximum penalty in its sentencing memorandum. It does not appear that the parties ever argued any specifics about calculation of the sentence that was ultimately imposed.