State of Minnesota, Respondent, vs. Scott Aaron Krivinchuk, 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This opinion will be unpublished and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

C8-03-170

 

State of Minnesota,

Respondent,

 

vs.

 

Scott Aaron Krivinchuk,

Appellant.

 

Filed January 20, 2004

Affirmed in part and Reversed in part

Kalitowski, Judge

 

Goodhue County District Court

File No. K7011506

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Stephen N. Betcher, Goodhue County Attorney, Erin L.K. Schmickle, Assistant County Attorney, Goodhue County Justice Center, 454 West Sixth Street, Red Wing, MN 55066 (for respondent)

 

John M. Stuart, State Public Defender, Marie Wolf, Assistant Public Defender, 2221 University Avenue, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Kalitowski, Presiding Judge; Halbrooks, Judge; and Stoneburner, Judge.

 

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            A jury found appellant Scott Krivinchuk guilty of three counts of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(a), (g), and (h)(iii) (2000), three counts of second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(a), (g), and h(iii) (2000), possession of pornographic work involving a minor in violation of Minn. Stat. § 617.247, subd. 14(a) (2000), and use of a minor in a sexual performance in violation of Minn. Stat. § 617.246, subd. 2 (2000).  The district court imposed a 288-month sentence, which was an upward double departure, for the first-degree criminal sexual conduct conviction and a consecutive 48-month sentence for the use of a minor in a sexual performance conviction.  On appeal, appellant argues that the district court erred by:  (1) imposing a consecutive sentence for the use of a minor in a sexual performance conviction because it was part of the same behavioral incident as the criminal sexual conduct; and (2) imposing an upward durational departure from the presumptive sentence for the first-degree criminal sexual conduct conviction.  We affirm the upward departure, but because the two convictions were part of a single behavioral incident, we reverse in part. 

D E C I S I O N

I.

            Appellant argues that the district court erred in imposing the consecutive 48-month sentence, claiming that the underlying conduct of the first-degree criminal sexual conduct offense and the use of a minor in a sexual performance offense constituted a single behavioral incident.  We agree. 

            Generally, a court may only impose one sentence on a defendant for a single behavioral incident, even though the conduct constitutes more than one offense under state law.  Minn. Stat. § 609.035, subd. 1 (2000).  The purpose of this statutory prohibition is to protect a defendant convicted of multiple offenses from unfair exaggeration of the criminality of the conduct and to ensure that the punishment is commensurate with culpability.  State v. Soto, 562 N.W.2d 299, 302 (Minn. 1997).  The determining factor in deciding whether related criminal acts are separate events or a single behavioral incident is whether the conduct was motivated by an effort to obtain a singular criminal objective.  State v. Bookwalter, 541 N.W.2d 290, 295 (Minn. 1995).  A court will also consider unity of time and place to determine whether an event was a single behavioral incident.  State v. Marchbanks, 632 N.W.2d 725, 731 (Minn. App. 2001).  Offenses are not part of the same course of conduct if each offense can be explained without necessary reference to the other.  Id.  The state has the burden to establish by a preponderance of the evidence that the conduct did not occur as part of a single behavioral incident.  State v. Williams, 608 N.W.2d 837, 841 (Minn. 2000). 

            Here, we conclude that the conduct underlying the sexual performance offense, photographing the victim in various sexual poses, and the conduct underlying the criminal sexual conduct offense, sexual contact or penetration, are inextricably linked.  The evidence indicates that appellant sexually abused and photographed the 11-year-old male victim with the singular criminal objective of sexual gratification.

            While appellant sexually abused and photographed the victim on several occasions, in sentencing appellant the district court largely relied on the events that transpired on the night when the victim stayed overnight at appellant's apartment.  On that night, appellant took approximately 150 photographs, which included:  (1) appellant performing oral sex on the victim; (2) the victim performing oral sex on appellant; (3) the victim naked with a handgun to his mouth and a handgun to his temple; (4) the victim naked, handcuffed, gagged with duct tape, positioned with guns, and smeared with a red substance; (5) the victim naked, handcuffed and spread-eagled on a bed; (6) the victim naked and "hog-tied" on his stomach with his hands cuffed behind his back and his legs shackled to his hands; and (7) appellant naked, handcuffed, and gagged.

            The state argues that on that night, appellant initially intended to sexually assault the victim, but then, as indicated by the photographs, his "criminal objective changed from intent to sexually assault to intent to terrorize or perhaps kill."  We disagree.  The evidence indicates that appellant used guns, handcuffs, shackles, gags, and simulated blood as elaborate props in staging his sadomasochistic sexual fantasies and capturing them on film.  And the evidence indicates that appellant posed and photographed the victim for the purpose of instant and future sexual stimulation and gratification. 

            Under some facts, sexual gratification may be too broad to be treated as a single criminal objective.  See State v. Secrest, 437 N.W.2d 683, 685 (Minn. App. 1989) (concluding that even if appellant's actions were motivated by a perverse sexual desire, that motivation is too broad where there were several instances of sexual contact occurring over a period of time), review denied (Minn. May 24, 1989).  But here, the underlying conduct upon which both convictions were based occurred at the same time and place.  Moreover, the evidence indicates that appellant photographed himself performing oral sex on the victim and the victim performing oral sex on him.  And we conclude that the evidence does not support an inference that appellant intended to kill the victim or intended to commit any crime separate from perpetuating his sexual abuse of the victim.  Because appellant had a singular criminal objective for committing the criminal sexual conduct and using a minor in a sexual performance, we conclude that these two offenses constituted a single behavioral incident.  Therefore, the district court erred in imposing a 48-month consecutive sentence for the conviction of use of a minor in a sexual performance and we vacate that sentence.

II.

             Appellant also argues that the district court abused its discretion by imposing an upward durational departure for the first-degree criminal sexual conduct offense.  We disagree.  A district court has broad discretion to depart from sentencing guidelines if aggravating or mitigating factors exist.  State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999); see State v. McIntosh, 641 N.W.2d 3, 8 (Minn. 2002) (stating that substantial and compelling circumstances must be present to warrant departures from the presumptive guideline sentence).  In determining whether to depart, the district court should consider whether the defendant's conduct was significantly more or less serious than that typically involved in such crimes.  State v. Cermak, 344 N.W.2d 833, 837 (Minn. 1984).  "If the record supports findings that substantial and compelling circumstances exist, this court will not modify the departure unless it has a ‘strong feeling' that the sentence is disproportional to the offense."  State v. Anderson, 356 N.W.2d 453, 454 (Minn. App. 1984) (citation omitted).

            Generally, it is inappropriate for a district court to use as a basis for departure the same facts that are relied on in determining the presumptive sentence.  Cermak, 344 N.W.2d at 839.  But each case must be considered on its own merits, and a district court must make a "qualitative assessment" of all the facts to determine if the defendant's conduct was sufficiently different in degree to justify the durational departure.  Id. (citing State v. Luna, 320 N.W.2d 87, 89 (Minn. 1982)).  Further, a sentencing departure will be upheld even if based on improper factors if it can be supported by other factors.  State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981). 

            Here, the district court imposed a 288-month sentence for appellant's conviction of criminal sexual conduct in the first degree relating to significant relationship and multiple acts.  Minn. Stat. § 609.342, subd. 1(h)(iii) (2000).  This offense includes the following elements:  (1) the defendant engaged in sexual contact with a person under 13 years of age or sexual penetration of the victim; (2) the defendant had a significant relationship with the victim; (3) the victim was under 16 years of age at the time of the sexual penetration; and (4) the sexual abuse involved multiple acts committed over an extended period of time.  Id.

            The district court listed four factors to support its upward durational departure:  (1) the victim was especially vulnerable because of his age and other circumstances of the case; (2) appellant held a position of trust and authority as a friend to the victim and his family; (3) appellant committed the offenses in a highly sophisticated, shrewdly planned, progressive, and fully prepared manner; and (4) the victim was treated with particular cruelty by the forced sexual penetration because he was restrained and photographed while in an extremely vulnerable position.

            Appellant contends that the district court improperly considered the victim's age and appellant's position of trust because both of these factors are already elements of the crime.  See Minn. Stat. § 609.342, subd. 1(h)(iii).  We agree.  A district court cannot rely on the aggravating factor of the victim's vulnerability due to age when the victim's age has already been considered by the legislature in determining the elements of the offense.  Taylor v. State, 670 N.W.2d 584, 589 (Minn. 2003) (citing State v. Hagen, 317 N.W.2d 701, 703 (Minn. 1982)).  Nor can a district court rely on the aggravating factor of violation of position of trust where a significant relationship with the victim is an element of the offense.  State v. Sebasky, 547 N.W.2d 93, 101 (Minn. App. 1996), review denied (Minn. June 19, 1996).  Therefore, we conclude that the district court erred in considering the victim's age and appellant's position of trust as aggravating factors that justified an imposition of an upward departure.  Also, the court erred in basing a departure on the age difference between appellant and the victim because a person convicted of violating these sections will typically be significantly older than the victim.  

            Appellant also contends that it was error for the district court to consider appellant's level of planning as an aggravating factor.  We disagree.  Extensive planning and manipulation constitute aggravating factors that justify an upward departure.  Sebasky, 547 N.W.2d at 101.  Here, the district court found an aggravating circumstance because appellant committed the sexual abuse "in a highly sophisticated, shrewdly planned, progressive, fully prepared manner."  Because the evidence indicates that appellant's abuse of the victim, particularly the incident that occurred at appellant's apartment, was carefully planned and orchestrated, we cannot say that the district court abused its discretion in finding appellant's level of planning to be an aggravating factor.

             Appellant also argues that the district court erred in considering particular cruelty as an aggravating factor.  We disagree.  Particular cruelty is conduct of a degree that typically is not associated with the offense in question.  State v. Schantzen, 308 N.W.2d 484, 487 (Minn. 1981).  The fact that an offender treats a victim with particular cruelty is an aggravating factor, which alone can justify a double departure.  State v. Edwards, 380 N.W.2d 503, 510 (Minn. App. 1986).  Here, the district court found that appellant treated the victim with particular cruelty by:  (1) restraining him with handcuffs and shackles; (2) making direct and indirect threats; (3) telling him that if he reported the abuse, appellant would no longer be his friend; (4) displaying firearms during the commission of the offense; (5) photographing him in an extremely vulnerable position, which subjected him to pain; (6) forcing him to portray his own death; and (7) inflicting immeasurable trauma.       

            Appellant contends that he did not treat the victim with particular cruelty because he did not threaten, physically abuse, or endanger the victim; he only threatened that he would not be the victim's friend.  We disagree.  Particular cruelty can be found even where an offender does not threaten or physically injure a victim.  See State v. Cox, 343 N.W.2d 641, 645 (Minn. 1984) (concluding that offender was gratuitously cruel where he not only raped victim, but also left her without clothing so that she would have to appear outside partially naked to seek help).  Here, the evidence supports the district court's conclusion that appellant photographed the victim while the victim was in an "extremely vulnerable position" as evidenced by the display of weapons and the use of handcuffs, shackles, gags, and simulated blood.  See State v. Winchell, 363 N.W.2d 747, 751 (Minn. 1985) (binding victim may be considered in determining whether offense committed in particularly serious way).  We conclude, based on this evidence, that the district court did not err in finding appellant's conduct was particularly cruel and of a degree not typically associated with first-degree criminal sexual conduct.   

            Appellant further argues that the district court impermissibly referred to the conduct underlying the sexual performance offense to support the upward departure.  We agree that a court cannot rely on an element of a crime for which a defendant was sentenced as an aggravating factor in sentencing the defendant for another conviction.  State v. Spaeth, 552 N.W.2d 187, 196 (Minn. 1996); see State v. Butterfield, 555 N.W.2d 526, 533 (Minn. App. 1996) (stating that the district court cannot rely on elements of assault committed during kidnapping to depart on kidnapping sentence when the defendant was also sentenced for the assault), review denied (Minn. Dec. 17, 1996).  But the court can consider the conduct underlying a crime for which the defendant was convicted but not sentenced.  See State v. Coley, 468 N.W.2d 552, 556 (Minn. App. 1991) (finding that the district court properly relied on elements of assault to depart on kidnapping sentence when the defendant was not sentenced for assault). 

            Here, we note that the district court based its departure decision not on the fact that appellant used the victim in a sexual performance, but rather, on the manner in which appellant posed and photographed the victim:  naked, handcuffed, shackled, gagged, positioned with guns, and smeared with a blood-like substance.  More importantly, because we have vacated appellant's 48-month consecutive sentence for the sexual performance conviction, we conclude that it is not error to consider appellant's conduct in using the victim in a sexual performance to justify a departure on appellant's sentence for first-degree criminal sexual conduct. 

            Finally, we recognize that the Minnesota Supreme Court recently held that a departure from the presumptive sentence in a first-degree criminal sexual conduct case was improper, in part because of the legislative increases in sentences for those offenses.  Taylor, 670 N.W.2d at 590.  But here, unlike Taylor, appellant's criminal sexual conduct is not conduct that is typically associated with the offense, as evidenced by the elaborate staging of his sexual fantasies and the photographs.  And appellant's conduct was highly planned and particularly cruel.  Therefore, we conclude that the district court did not abuse its broad discretion in imposing an upward durational departure.

            In conclusion, we hold that the upward durational departure was permissible, but that the separate 48-month consecutive sentence for the sexual performance conviction was improper and must be vacated. 

            Affirmed in part and reversed in part.