State of Minnesota, Respondent, vs. John Allen Fillion, Appellant.

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This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-95-2117

C3-95-2118

State of Minnesota,

Respondent,

vs.

John Allen Fillion,

Appellant.

Filed June 4, 1996

Affirmed

Schumacher, Judge

Hennepin County District Court

File No. 94111129

Ramsey County District Court

File No. K8951185

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

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

John M. Stuart, State Public Defender, Lyonel F. Norris, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Davies, Presiding Judge, Parker, Judge, and Schumacher, Judge.

U N P U B L I S H E D O P I N I O N

SCHUMACHER, Judge

Appellant John Allen Fillion challenges the district court's sentencing order for his two convictions of first-degree criminal sexual conduct, arguing the double departure was improper and consecutive sentencing unduly exaggerates the criminality of his conduct. Fillion also filed a pro se brief in which he contests the district court's refusal to order probation. We affirm.

FACTS

In December 1994, Fillion's daughter, J.J.R., and his stepdaughter, K.M.G., reported that he had been sexually abusing them for approximately two years. J.J.R., born March 3, 1985, reported that, in addition to having vaginal intercourse with her, Fillion penetrated her vagina digitally and orally. She described threesome situations where he alternated engaging in sexual acts with her and K.M.G. and made them rub his genitals. K.M.G., born January 25, 1985, reported that Fillion had digitally penetrated her and J.J.R. and that Fillion made them perform oral sex on him.

Dr. Gary Fifield examined J.J.R. and K.M.G. and reported physical findings consistent with sexual abuse. His examination of J.J.R. "clearly reveal[ed] evidence of vaginal penetration on multiple occasions over a period of time" and his examination of K.M.G. also appeared "[s]uspicious." J.J.R.'s Cornerhouse interviewer concluded that J.J.R. had "suffered multiple incidents of serious sexual abuse" and recommended therapy.

Fillion was charged with two counts of first-degree criminal sexual conduct. He pleaded guilty to both counts, stating that he does not recall the facts alleged in the complaint, but he believed the alleged conduct could have occurred during periods of drug use and blackouts. The district court ordered Fillion to serve a double departure of 172 months for the offense involving his daughter and a consecutive 86-month sentence for the offense involving his stepdaughter.

D E C I S I O N

1. Absent a clear abuse of discretion, this court will not reverse the district court's decision to depart from the presumptive sentence under the sentencing guidelines. State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981). In deciding whether to depart durationally, the sentencing court must consider whether the defendant's actions were significantly more or less serious than that typically involved in the offense. State v. Cox, 343 N.W.2d 641, 643 (Minn. 1984). This court will affirm even if the district court cites some improper or inadequate reasons to justify departure, but the record contains sufficient evidence to support the departure. Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).

Fillion was convicted under Minn. Stat. 609.342, subd. 1(h)(iii) (1994), which requires the existence of a significant relationship between the actor and the complainant, that sexual penetration occurred when the complainant was under 16 years of age, and that the abuse involved the commission of multiple acts over an extended period of time. It is questionable whether it was proper for the district court to consider Fillion's breach of his daughter's trust as a factor because it is contemplated in the statute's significant relationship requirement. SeeState v. Hagen, 317 N.W.2d 701, 703 (Minn. 1982) (victim's vulnerability due to age cannot be aggravating factor when age is included as element of offense). Similarly, the consideration of Fillion's multiple victims was redundant in light of the imposition of a consecutive sentence for the second victim. Moreover, the physical evidence of the penetration of J.J.R. does not provide a basis for departure because the record contains no evidence of a personal injury or the need for medical treatment. SeeState v. Casady, 392 N.W.2d 629, 634-35 (Minn. App. 1986) (evidence of repeated penetration without evidence of permanent injury or need for medical care is inappropriate basis for departure), review denied (Minn. Sept. 24, 1986).

On the other hand, the district court properly considered (1) J.J.R.'s age in light of the other evidence of the seriousness of Fillion's conduct; (2) the fact that Fillion committed the offenses so that his daughter and stepdaughter witnessed each other's abuse; and (3) the fact that J.J.R. will require counseling for her psychological injury. SeeState v. Cermak, 344 N.W.2d 833, 839-40 (Minn. 1984) (court properly considered victims' ages ranging from five to nine years old in deciding whether underlying conduct was different from that typically associated with offense; fact that victims witnessed each other's abuse is relevant); State v. Patterson, 511 N.W.2d 476, 478 (Minn. App. 1994) (need for future counseling is substantial and compelling factor), review denied (Minn. Mar. 31, 1994).

Fillion's multiple violations under Minn. Stat. 609.342 (1994) reflect the seriousness of his underlying conduct. See Cermak, 344 N.W.2d at 839 (fact defendant violated section 609.342 in more than one way is factor to consider in examining seriousness of conduct). Fillion was convicted under Minn. Stat. 609.342, subds. 1(a), 1(h)(iii), but he also violated Minn. Stat. 609.342, subd. 1(g) (actor has significant relationship to complainant and complainant was under 16 years old at time of sexual penetration). Although Fillion's multiple acts over an extended period of time constitute an element of the charged offense, the multiple types of penetration itself justifies a double upward durational departure. SeeState v. Mesich, 396 N.W.2d 46, 52 (Minn. App. 1986) (court properly considered "various types of penetration" in durational departure), review denied (Minn. Jan. 2, 1987).

2. The sentencing guidelines permit consecutive sentencing

[w]hen the offender is convicted of multiple current felony convictions for crimes against different persons, and when the sentence for the most severe current conviction is executed according to the guidelines.

Minn. Sent. Guidelines II.F.2. Absent compelling circumstances, this court will not interfere with the sentencing court's discretion to impose consecutive sentences. State v. Beamon, 438 N.W.2d 397, 400 (Minn. App. 1989), review denied (Minn. May 12, 1989).

Fillion claims no legitimate aggravating circumstances were present to justify the district court's imposition of consecutive sentences. The sentencing guidelines, however, do not require a court to find aggravating circumstances to impose consecutive sentences for separate felony convictions involving two different victims.

Fillion also argues that the district court's imposition of consecutive sentences unfairly exaggerates the criminality of his conduct. Fillion relies on State v. Poole, 489 N.W.2d 537, 544 (Minn. App. 1992), aff'd, 499 N.W.2d 31 (Minn. 1993), and State v. Norris, 428 N.W.2d 61, 70-71 (Minn. 1988). Neither case supports Fillion's argument. Although both courts modified the respective defendant's consecutive sentences for six convictions, those courts still permitted three consecutive sentences compared to the two consecutive sentences imposed here. See Norris, 428 N.W.2d at 71; Poole, 489 N.W.2d at 544. Further, Norris is distinguishable factually because the convictions arose from one multiple-victim incident; Fillion's convictions arose from separate incidents. The district court's imposition of consecutive sentences was not an abuse of discretion.

3. In his pro se supplemental brief, Fillion argues the district court abused its discretion by ordering imprisonment rather than probation. When sexual misconduct involves a complainant with whom the defendant has a significant relationship, the district court may stay the sentence if (1) a stay serves the best interests of the complainant or family unit and (2) the offender has been accepted by and can respond to a treatment program. State v. Hamacher, 511 N.W.2d 458, 460-61 (Minn. App. 1994) (citing Minn. Stat. 609.342, subd. 3 (1994)). Fillion's argument lacks merit because the record does not support his contention that probation was recommended or that he was accepted at a treatment center.

Affirmed.