State of Minnesota, Respondent, vs. Mark Krueger, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-122

 

 

State of Minnesota,

Respondent,

 

vs.

 

Mark Krueger,

Appellant.

 

 

Filed August 24, 2004

Affirmed in part and remanded

Halbrooks, Judge

 

 

Ramsey County District Court

File No. K4-03-1313

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102  (for respondent)

 

R. Gordon Nesvig, Box 255, Cottage Grove, MN 55016-0255 (for appellant)

 

 

            Considered and decided by Schumacher, Presiding Judge, Halbrooks, Judge, and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            On appeal from a sentence imposed for first-degree criminal sexual conduct, use of a minor in a sexual performance, and possession of child pornography, appellant argues that the district court abused its discretion in (1) sentencing him to 288 months for the first-degree criminal sexual conduct crime, a double upward durational departure; (2) refusing to grant a downward durational or dispositional departure; and (3) imposing separate sentences on counts 2 and 3, when his acts were part of a single behavioral incident.  Because we conclude that the district court did not abuse its discretion in declining a downward dispositional departure or in imposing separate sentences on counts 2 and 3, we affirm on those issues.  But in response to the United States Supreme Court's recent holding in Blakely v. Washington, 124 S. Ct. 2531 (June 24, 2004), we remand on the issue of whether appellant's first-degree criminal sexual conduct sentence is appropriate. 

FACTS

            In February 2002 and March 2003, staff at a Walgreens drug store notified the St. Paul Police Department that appellant Mark Richard Krueger was dropping off film for developing that contained images of a nude juvenile female.  Police recovered approximately 50 to 70 photographs from the store, showing the juvenile in "sexually explicit poses, including partial and full views of [her] breasts, genitals and buttocks."  Appellant was also depicted in several of the photographs.  Police subsequently identified the juvenile female as 13-year-old J.R.S., the daughter of appellant's ex-girlfriend.  Appellant was 39 years old.  Police then executed a search warrant of appellant's home, where they recovered additional nude photographs of J.R.S.  According to the complaint, police also seized a videotape showing J.R.S. and appellant "engaged in the acts of oral, anal and vaginal sexual penetration."

            In September 2003, appellant pleaded guilty to first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(g) (2002), use of a minor in a sexual performance in violation of Minn. Stat. § 617.246, subd. 2 (2002), and possession of child pornography in violation of Minn. Stat. § 617.247, subd. 4(a) (2002).  At the hearing, appellant admitted to taking pictures[1] of J.R.S. in sexual poses where she was either partially dressed or completely nude, but stated that he had no intention of making the photographs public.  Appellant also admitted that on four separate occasions, he videotaped himself "engag[ing] in oral sex and sexual acts" with J.R.S.  Although appellant denied that there was intercourse on the tape, he admitted that the tape showed appellant performing oral sex on J.R.S. and J.R.S. performing oral sex on him.  Appellant stated that J.R.S. was not aware that he was videotaping these acts.  Appellant also testified that he engaged in sexual conduct with J.R.S. on approximately ten other occasions that were not videotaped.  But appellant denied ever having vaginal-penile intercourse with J.R.S.  Both the sexual conduct and the photography occurred in appellant's home, where J.R.S. also resided.  After accepting appellant's guilty plea, the district court ordered a presentence investigation (PSI).

            The PSI indicates that appellant "admitted that he took two hundred or more photographs in four months" and "stated that he and J.R.S. engaged in mutual oral sex, vaginal and anal intercourse, and mutually enjoyed doing it in front of the camera."  Furthermore, the PSI found that appellant "minimizes his own culpability."  For example, the PSI states that appellant told the investigator that when J.R.S. turned 13 years old, she "started to dress more provocatively, and started flirting with [him]."  The PSI also reports that appellant stated:

What really sent me over was that she told me that she had an attraction to older guys. . . . [T]he first time she questioned me about watching her in the shower, she told me that her mom had warned her that I had an attraction to younger girls.  She said that she knew it, and it just threw me over the edge when she said that she wanted an older man.  The first time we did it, she came downstairs, when I was on the couch, and she cuddled up next to me.  We started off fondling each other and I carried her into the bedroom. . . .  The second night, J.R.S. wanted to play truth or dare and she let me take photos.  It turned out to be something that she really enjoyed and whenever we were alone together, she'd say, go get your camera.  I'd try to slow it down, but then she threatened to tell her mother if I didn't take them.

 

(Quotations omitted.)  Concluding that appellant "lack[s] amenability to supervision and treatment," the investigator recommended an executed prison sentence and an upward durational departure from the sentencing guidelines.

In October 2003, appellant appeared for sentencing and requested a stay of execution pursuant to Minn. Stat. § 609.342, subd. 3 (2002).  Appellant then testified that the PSI contained several errors.  First, appellant denied telling the investigator that he had engaged in anal and vaginal-penile penetration with J.R.S. on numerous occasions, and again denied that such conduct ever occurred.  Second, appellant denied telling the investigator that J.R.S. threatened to tell her mother if appellant did not continue engaging in inappropriate behavior with her.  Third, in response to the investigator's statement that appellant was making excuses for his conduct, appellant stated that he was simply "trying to be honest . . . about the facts that had occurred."  Appellant explained in further detail that

[he and the investigator] were discussing on a number of the occasions that . . . when the photographs were taken that at times . . . it was actually . . . J.R.S. that . . . would request that . . . I grab my camera to take the photographs. . . . It wasn't something that I was . . . trying to shift the blame to her . . . .  That was just the facts as they occurred.

 

Additionally, appellant denied that J.R.S. had previously stated that vaginal intercourse took place, and denied that the prosecutor told him this at the guilty-plea hearing.

            Douglas Williams, the director of intake and outpatient services at Alpha Human Services, testified on appellant's behalf.  Williams explained that Alpha House is a long-term residential program for adult sex offenders, with both inpatient and outpatient programs, that is licensed by the Department of Corrections as a minimum-security facility.  Based on a 1996 study, Williams asserted that after successful completion of the program, 89% of offenders had no further sex crimes convictions.  But on cross-examination, Williams admitted that he did not know how many candidates successfully completed the program, and estimated that one-third of the participating offenders were unsuccessful. 

            Williams testified that he interviewed appellant and "found him as someone I thought we could work with and would be appropriate for our program with a good prognosis for completion."  Williams also stated that he "did not see that [appellant] would present an undue risk on the community to be in our program or to the staff or other residents."  But on cross-examination, Williams admitted that he had only interviewed appellant for two hours, that he did not review any reports from the St. Paul Police or Midwest Children's Resource Center concerning appellant's prior convictions, and he did not interview the investigating officer.  Furthermore, when asked what would happen "[i]f in the middle of the night [appellant] wanted to leave Alpha House and go to Mexico," Williams conceded that "[h]e could abscond, correct," and that "nobody is there to force him to stay." 

            Appellant's employer, Tim Vietmeier, also testified.  Vietmeier stated that if appellant attended the program at Afton House, he could "have his job back at any time."  Vietmeier also stated that appellant was covered through Health Partners Insurance and that the company would continue to pay those premiums during the course of appellant's treatment. 

            S.K., appellant's 19-year-old biological daughter, testified next.  In 1995, appellant pleaded guilty to fifth-degree criminal sexual conduct and gross misdemeanor indecent conduct involving S.K.  When asked about the inappropriate pictures appellant took of her when she was 11 years old, S.K. stated, "I basically choose not to remember any of it."  S.K. stated that she was not aware that appellant had photographed her until the court proceedings involving J.R.S. began.  S.K. denied that appellant ever touched her inappropriately.  S.K. also testified that since turning 18, she had resumed her relationship with her father and talks to him several times a week. 

            Finally, John Taborn, M.D., a post-doctoral fellow at the program in human sexuality at the University of Minnesota, testified.  Dr. Taborn stated that he interviewed appellant on three occasions, reviewed appellant's criminal history, and reviewed the records from the 1995 charge involving appellant's biological daughter.  Dr. Taborn opined that because appellant (1) had consistently acknowledged the problem, (2) had acknowledged his prior criminal history of sexual offenses, (3) had requested treatment, and (4) appeared to be of average intellectual ability, appellant was "amenable to treatment."  Furthermore, Dr. Taborn stated that treatment was necessary for appellant because he exhibited signs of depression and was at "a medium/high risk for re-offending over time."  Dr. Taborn recommended inpatient, residential treatment for appellant at a facility like Afton House, but also stated that he was "not comfortable in making an assessment [as to] whether [appellant] should go to prison."

            On cross-examination, Dr. Taborn recognized that in his assessment, he concluded that appellant was "not an appropriate candidate for outpatient services."  This opinion was based on the fact that appellant "has not completed four previous treatment programs, there is evidence of an escalating nature to his offenses, and [he] has clearly not benefited from outpatient treatment programs."  Furthermore, Dr. Taborn's assessment recognized that in addition to inpatient treatment, "corrections-based sex offender treatment" would be appropriate.

            Appellant was subsequently sentenced to 288 months in prison for count 1 (first-degree criminal sexual conduct) a double upward durational departure, 48 months in prison for count 2 (use of a minor in a sexual performance), and one year and one day in prison for count 3 (possession of child pornography).  The district court ordered the sentence for count 1 to run consecutively to the sentence for count 2, and the sentence for count 3 to run concurrently with the other sentences.  In sum, appellant was sentenced to 336 months in prison.  The district court also required appellant to register as a sex offender pursuant to Minn. Stat. § 243.166 (2002) and to submit a biological test for DNA analysis pursuant to Minn. Stat. § 609.117 (2002).  Furthermore, appellant was prohibited from having contact with any minor children. 

            The district court noted that there were several "substantial and compelling" aggravating factors warranting the upward durational departure for appellant's first-degree criminal sexual conduct sentence, as well as for consecutive sentencing, including that (1) the victim was vulnerable due to being 13 years old and of a reduced physical capacity, (2) the victim's zone of privacy was violated because she was abused in her own home, (3) the abuse occurred over an extended period of time with multiple penetrations, many of which were photographed, (4) appellant videotaped the events without the victim's knowledge, and (5) appellant showed no remorse and failed to take responsibility for his actions.  The court concluded that these aggravating factors "outweigh[ed] any consideration of his amenability to treatment and community supervision."  Furthermore, the district court cited several reasons for the denial of appellant's request for a downward dispositional departure, including (1) appellant's past unsuccessful attempts at sex offender treatment, (2) the serious risk appellant posed to the community due to the escalating nature of his conduct, and (3) that the criteria set forth in Minn. Stat. § 609.342, subd. 3, had not been met.  This appeal follows.

D E C I S I O N

I.

 

Appellant argues that the district court abused its discretion by imposing a 288-month sentence for his first-degree criminal sexual conduct conviction, a double upward durational departure from the presumptive guidelines sentence.  The district court based both departures on its findings that appellant's offenses presented substantial and compelling circumstances making his conduct significantly more serious than that typically involved in the commission of the offense in question.  See Minn. Sent. Guidelines II.D; State v. Best, 449 N.W.2d 426, 427 (Minn. 1989). 

After this appeal was briefed, the United States Supreme Court issued its opinion in Blakely v. Washington, 124 S. Ct. 2531 (2004), holding that an upward departure under Washington state's determinate sentencing scheme violated the defendant's Sixth Amendment right to a jury trial.  The potential application of that opinion has not been briefed.  This court generally does not consider issues raised for the first time on appeal, even if prompted by newly released United States Supreme Court opinions.  See State v. Goebel, 654 N.W.2d 700, 702 (Minn. App. 2002) (stating general rule requiring issues be first litigated in district court); Johnson v. Mult. Misc. Items, 523 N.W.2d 238, 241 (Minn. App. 1994) (declining to decide for first time on appeal effect of recently released Dep't. of Revenue v. Kurth Ranch, 511 U.S. 767, 114 S. Ct. 1937 (1994), although discussing opinion).  The interests of justice do not warrant addressing Blakely for the first time on appeal without any briefing on the issue.  See generally State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989) (declining to address constitutional issue not fully briefed and not litigated in district court).  Accordingly, we remand to the district court for a consideration of the application, if any, of Blakely to appellant's sentence.

II.

To the extent that appellant is challenging the district court's decision not to grant a downward dispositionaldeparture, we reject that argument.  Generally, the sentencing court may depart if the defendant is "particularly amenable to probation or if offense-related mitigating circumstances are present."  State v. Love, 350 N.W.2d 359, 361 (Minn. 1984).  Amenability depends on numerous factors, including the defendant's age, prior record, remorse, cooperation, attitude while in court, and the support of friends or family.  State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).  The decision whether to depart dispositionally focuses "more on the defendant as an individual and on whether the presumptive sentence would be best for him and for society."  State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983). 

            Here, the district court cited several reasons for the denial of appellant's request for a downward dispositional departure, including (1) appellant's past unsuccessful attempts at sex offender treatment, (2) the serious risk appellant posed to the community due to the escalating nature of his conduct, and (3) that the criteria set forth in Minn. Stat. § 609.342, subd. 3 (2002), had not been met.  The district court's reasoning has considerable support in the record.  The PSI investigator specifically found that appellant "lacks amenability to supervision and treatment."  In reaching this conclusion, the investigator considered appellant's substantial criminal history, which includes convictions for misdemeanor indecent exposure, gross misdemeanor indecent exposure, misdemeanor indecent conduct, gross misdemeanor indecent conduct, and fifth-degree criminal sexual conduct, along with the fact that appellant "minimizes his own culpability" and portrays himself as the victim.  Furthermore, appellant's own expert, Dr. Taborn, recognized that appellant "has not completed four previous treatment programs, there is evidence of an escalating nature to his offenses, and [he] has clearly not benefited from outpatient treatment programs."  Furthermore, Dr. Taborn's assessment recognized that in addition to inpatient treatment, "corrections-based sex offender treatment" would be appropriate for appellant.  Therefore, we conclude that the district court did not abuse its discretion in declining to grant a downward dispositional departure.

III.

 

Appellant also argues that his sentences on counts 2 and 3 should either be vacated or imposed concurrently.  Appellant seems to contend that because the acts for which he was convicted under count 1 (engaging in oral sex with J.R.S.) had the "singular objective" of making photographs and videotapes, those acts are part of a single behavioral incident, and, therefore, he cannot be punished under count 2 (use of a minor in a sexual performance) or count 3 (possession of child pornography). 

Minn. Stat. § 609.035, subd. 1 (2002), provides that "if a person's conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses."  Thus, if a defendant commits multiple offenses against the same victim during a single behavioral incident, the defendant may be sentenced on only one of those offenses.  State v. Bookwalter, 541 N.W.2d 290, 293 (Minn. 1995).  Any multiple sentences, including concurrent sentences, are barred if the statute applies.  State v. Boley, 299 N.W.2d 924, 925 (Minn. 1980).  Multiple crimes are part of a single behavioral incident if "one crime is committed with the intent of facilitating another or is but a means toward committing another."  State v. Huynh, 504 N.W.2d 477, 483 (Minn. App. 1993).  Whether multiple offenses arose out of a single behavioral incident depends on the facts and circumstances of a particular case.  State v. Hawkins, 511 N.W.2d 9, 13 (Minn. 1994). 

Here, appellant pleaded guilty to use of a minor in a sexual performance (count 2) under Minn. Stat. § 617.246, subd. 2 (2002), which provides:

It is unlawful for a person to . . . use . . . a minor to engage in . . . posing or modeling alone or with others in any sexual performance or pornographic work if the person knows or has reason to know that the conduct intended is a sexual performance or a pornographic work.

 

Appellant also pleaded guilty to possession of child pornography (count 3) in violation of Minn. Stat. § 617.247, subd. 4(a) (2002), which provides that a "person who possesses a pornographic work . . . knowing or with reason to know its content and character, is guilty of a felony."

We agree with the state that appellant was "clearly motivated by different criminal objectives," while committing these crimes.  Appellant has admitted to engaging in oral sex with J.R.S. approximately ten times without the use of cameras, and that not all of the photographs contained images of oral sex.  Thus, while appellant was motivated to obtain sexual satisfaction by engaging in oral sex with J.R.S. under count 1, this motivation is separate from his purpose in videotaping or photographing J.R.S., and likewise separate from possessing those images for some other future use.  Therefore, we reject appellant's argument that his sentence under count 2 should be vacated or imposed concurrently, as well as his argument that his sentence under count 3 should be vacated. 

IV.

Appellant's reply brief raises additional issues that were not presented in his principal brief.  We, therefore, decline to address these arguments, as they are not properly before this court.  See McIntire v. State, 458 N.W.2d 714, 717 n.2 (Minn. App. 1990) (arguments not made in appellant's brief may not be raised in reply brief), review denied (Minn. Sept. 28, 1990).

            Affirmed in part and remanded.

 

 

*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. 

[1] Appellant originally estimated that he took 100 pictures of J.R.S.  But later, appellant admitted that police seized a shoebox containing approximately 23 packets of 24-roll exposure film (or 552 pictures), all of J.R.S.