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

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, Suite 600, 2829 University Avenue S.E., Minneapolis, MN 55414 (for appellant)

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

This appeal is from a judgment of conviction for first-degree burglary and second-degree assault. See Minn. Stat. §§ 609.222, subd. 1, 609.582, subd. 1(b), (c) (1996). Appellant Robert Ahlberg was sentenced to concurrent terms of 86 months and 36 months. Because we conclude the trial court did not abuse its discretion in instructing the jury on appellant's failure to testify or in imposing an upward sentencing departure, we affirm.

The jury found Ahlberg not guilty of attempted second-degree murder but guilty of the other counts. The trial court sentenced Ahlberg to 86 months on the first-degree burglary, an upward departure from the presumptive sentence of 48 months, and to a concurrent 36 months, the presumptive sentence, for second-degree assault.

As the supreme court stated in Larson,

[a] plea of not guilty is not testimony or the equivalent of testimony; rather, it is merely the formal way a criminal defendant puts the state to its [burden of proof].

Id. Defense counsel, by making the same argument disapproved in Larson, "opened the door" to the giving of CRIMJIG 3.17. Moreover, defense counsel did not object to any of the court's instructions, including CRIMJIG 3.17. In Larson, the supreme court affirmed even though the trial court gave CRIMJIG 3.17 over a defense objection and added another instruction explicitly negating defense counsel's argument. Larson, 358 N.W.2d at 671-72. The use of CRIMJIG 3.17 alone, without defense objection, was certainly not an abuse of discretion under Larson.

The trial court has discretion to depart from the presumptive sentence if there are aggravating or mitigating circumstances. State v. Best, 449 N.W.2d 426, 427-28 (Minn. 1989). This court will not reverse a departure absent a clear abuse of discretion. State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981).

The burglary was aggravated because it violated an order for protection the victim had obtained against Ahlberg. See State v. Coley, 468 N.W.2d 552, 556 (Minn. App. 1991) (holding violation of restraining order was separate factor from invasion of zone of privacy). Ahlberg's conduct, moreover, was part of a history of abuse, a lengthy course of conduct that also supports the departure. See generally State v. Murphy, 545 N.W.2d 909, 917 (Minn. 1996) (upward departure for terroristic threats supported in part by ten-year duration of conduct). The presentence investigation also indicates that Ahlberg's former girlfriend required psychological counseling as a result of the offense. Although the trial court did not cite this factor, it is a proper aggravating factor, establishing the victim's psychological injury. State v. Patterson, 511 N.W.2d 476, 478 (Minn. App. 1994), review denied (Minn. Mar. 31, 1994). Moreover, although invasion of the "zone of privacy" is an element of first-degree burglary that may not be used as grounds for departure, the victim, who was at rest in the early hours of the morning, was particularly vulnerable at the time of the offense, even beyond her rightful reliance on the security of her own dwelling. Therefore, we conclude the trial court did not clearly abuse its discretion in imposing a 1.7-times upward departure from the presumptive sentence for first-degree burglary.

Affirmed.

[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals pursuant to Minn. Const. art. VI, § 10.