This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C7-99-1045

State of Minnesota,
Respondent,

vs.

David Novins Brown,
Appellant.

Filed November 2, 1999
Affirmed
Willis, Judge

Hennepin County District Court
File No. 98109899

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103, and

Amy Klobuchar, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Willis, Presiding Judge, Davies, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant David Novins Brown challenges his sentence for conviction of two counts of criminal sexual conduct in the second degree. He argues that the district court abused its discretion in imposing permissive consecutive sentences and a double upward durational departure. We affirm.

FACTS

Appellant David Novins Brown was charged with two counts of first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(a) (1994) (engaging in sexual penetration with a person under 13 and more than 36 months younger than the actor) against separate victims, and an alternate count of second-degree criminal sexual conduct, in violation of Minn. Stat. § 609.343, subd. 1(a) (1994) (engaging in sexual contact with a person under 13 and more than 36 months younger than the actor) against one of the victims. He negotiated a plea agreement with the state under which he would plead guilty to two counts of second-degree criminal sexual conduct and be sentenced to 60 months' imprisonment, the presumptive sentence for those offenses.

The complaint alleged that the offenses were committed between January 1996 and October 1997 against appellant's nieces, R.R. (born September 10, 1986) and B.R. (born September 26, 1989). In pleading guilty, appellant denied sexually penetrating either victim, but admitted that he had touched their inner thighs and vaginas for his own sexual or aggressive gratification.

At the plea hearing, the district court made it clear that it would impose the 60-month sentence only if appellant appeared at sentencing and did not violate any of the conditions of release, which included retaining his employment, refraining from the possession or use of alcohol or drugs, retaining his residence at the halfway house where he was living, reporting to the probation department at least once a week, having no contact with the victims or their families, and attending A.A. meetings. Appellant stated on the record that he understood that if he violated the conditions of release or failed to appear he would receive a sentence "substantially greater" than 60 months.

Appellant violated the terms of his release before sentencing by losing his job, using drugs or alcohol, and being expelled from the halfway house. He also missed a scheduled appointment with his probation officer and his whereabouts were unknown for much of the two-week period between the plea hearing and the sentencing hearing.

At sentencing, the prosecutor moved for a double upward departure and presented victim-impact statements from R.R. and B.R. and their parents. Appellant conceded that he had violated his conditions of release but argued that the violations warranted only a minimal increase in sentence.

The district court doubled the presumptive sentence on the grounds that the victims were particularly vulnerable due to their ages, the victims had been treated with particular cruelty, and appellant had failed to comply with the terms and conditions of release. Brown appeals.

D E C I S I O N

An upward departure from a presumptive sentence under the sentencing guidelines may be imposed only if "substantial and compelling" aggravating circumstances are present. State v. Givens, 544 N.W.2d 774, 777 (Minn. 1996). A decision to depart from the sentencing guidelines rests within the district court's discretion and will not be reversed on appeal absent an abuse of discretion. Id. at 776. The sentencing guidelines provide a nonexclusive list of aggravating factors the court may consider in determining whether upward departure from the presumptive sentence is justified, which includes whether the victim was particularly vulnerable. The sentencing court must determine whether the facts of a particular case make the defendant's conduct "significantly more or less serious than that typically involved in the commission of the crime in question." State v. Cermak, 344 N.W.2d 833, 837 (Minn. 1984).

a. Violation of Conditions of Release

Appellant argues that the district court erred by considering his failure to comply with the conditions of release pending sentencing as an offense-related aggravating factor justifying an upward departure from the presumptive sentence. We agree that a defendant's conduct pending sentencing may not be used as grounds for an upward sentencing departure. State v. Kunshier, 410 N.W.2d 377, 379 (Minn. App. 1987), review denied (Minn. Oct. 21, 1987). The district court properly cited appellant's violations of the conditions of release as grounds for rejecting the 60-month sentence provided in the plea agreement, but in reviewing the sentencing departure, we must disregard those violations.

Appellant points out that the district court should have allowed him to withdraw his guilty plea after the court rejected the agreed-on sentence. Id. But appellant did not move to withdraw his guilty plea, and his attorney conceded that appellant's violation of the conditions of release justified at least a minimal departure from the agreed-on sentence. The district court may have had an independent duty to inform appellant of his right to withdraw his plea. See State v. Kortkamp, 560 N.W.2d 93, 95 n.1 (Minn. App. 1997) (declining to decide whether there was an independent duty to inform defendant of right to withdraw plea when plea agreement was violated). But even on appeal appellant does not seek a withdrawal of his guilty plea; therefore, we need not reach the issue.

b. Grounds for Departure

Appellant argues that the grounds relied on by the district court in determining that the victims were treated with particular cruelty--sexual penetration, multiple acts, and threats of harm--are without support in the record. We agree. Although the district court heard the victim-impact statements describing these aggravating factors, there is no evidence in the record to corroborate them. See State v. Yanez, 469 N.W.2d 452, 455 (Minn. App. 1991) (holding that court may consider victim-impact statements in departing if they state proper aggravating factors and are corroborated by evidence in the record), review denied (Minn. June 19, 1991). There are no police reports in the file, and there was no presentence investigation (PSI). Although appellant waived the PSI, he did so on the assumption that the agreed-on sentence of 60 months would be imposed.

We conclude, however, that there is an adequate record to establish that the victims were particularly vulnerable due to their ages and that appellant abused his position of authority and trust as their uncle. Appellant acknowledged the victims' ages at the guilty plea hearing and did not disagree when they were described as his nieces. These two aggravating factors are sufficient to support the double departure.

The district court may not use an element of the offense to support a sentencing departure. State v. Brusven, 327 N.W.2d 591, 593 (Minn. 1982). But the statute under which appellant pleaded guilty required only that the victims be under the age of 13. Minn. Stat. § 609.343, subd. 1(a) (1994). The age of a victim may be considered as an aggravating factor if it is sufficiently different from the age involved in the typical offense. Cermak, 344 N.W.2d at 839; State v. Skinner, 450 N.W.2d 648, 654 (Minn. App. 1990), review denied (Minn. Feb. 28, 1990). The victims here were nine and six years old, significantly younger than the statutory maximum age, at the time the sexual contact began; therefore, the district court did not abuse its discretion in concluding that the victims were particularly vulnerable because of their ages. See Skinner, 450 N.W.2d at 654 (considering age of ten-year-old victim of criminal sexual conduct as aggravating factor).

A defendant's abuse of a position of trust or authority may also be used as an aggravating factor. State v. Lee, 494 N.W.2d 475 (Minn. 1992). Both the complaint and the victim-impact statements refer to appellant as the victims' uncle. Although the complaint, which is merely a statement of unproven allegations, is not sufficient to corroborate every fact asserted in a victim-impact statement, we believe that family relationship, like the victims' ages, is so readily verifiable that we may consider it to be beyond dispute in this case. Moreover, appellant's testimony at the guilty-plea hearing implicitly corroborates the existence of that relationship.

This court has affirmed a double departure for second-degree criminal sexual conduct based on the age of the victim and the defendant's position of trust as her babysitter. State v. Brown, 406 N.W.2d 530, 534 (Minn. App. 1987), review denied (Minn. July 15, 1987); cf. State v. Beard, 574 N.W.2d 87, 92-93 (Minn. App. 1998) (reducing departure based on "absolute vulnerability" of infant murder victim and defendant's abuse of position of trust to double departure), review denied (Minn. Apr. 14, 1998). We have affirmed a nearly double departure for criminal sexual conduct based on the victim's particular vulnerability as the stepdaughter of the defendant. State v. Kobow, 466 N.W.2d 747, 753 (Minn. App. 1991), review denied (Minn. Apr. 18, 1991). In this case, the victims' particular vulnerability due to their ages, which were significantly less than the maximum statutory age for this offense, combined with appellant's abuse of his position of trust and authority as their uncle, which also made the victims more vulnerable to him, constitute aggravating circumstances supporting the double upward departure.

c. Consecutive Sentencing

Appellant argues that imposing consecutive sentences exaggerates the criminality of his conduct. State v. Norris, 428 N.W.2d 61, 70 (Minn. 1988). But the plea agreement itself contemplated consecutive sentencing, which was permissive because there were multiple victims. Minn. Sent. Guidelines II.F. There is no indication that consecutive sentencing exaggerates the criminality of appellant's conduct.

Affirmed.