State of Minnesota, Respondent, vs. Charles Fuller, Appellant.

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480 A. 08, subd. 3 (1994) State of Minnesota in Court of Appeals C3-95-2703 State of Minnesota, Respondent, vs. Charles Fuller, Appellant. Filed October 15, 1996 Affirmed Harten, Judge Mower County District Court File No. K8-95-147 Hubert H. Humphrey, III, Attorney General, John Docherty, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent) Patrick A. Oman, Mower County Attorney, 201 First Street N.E., Austin, MN 55912 (for Respondent) Melissa V. Sheridan, Assistant State Public Defender, 875 Summit Avenue, LEC 304, St. Paul, MN 55105 (for Appellant) Considered and decided by Peterson, Presiding Judge, Harten, Judge, and Foley, Judge.(*) [Footnote] (*)Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. Unpublished Opinion HARTEN, Judge (Hon. Michael Seibl, District Court Trial Judge) Appellant challenges the sentence imposed for his first-degree criminal sexual conduct conviction under Minn. Stat. § 609.342, subd. 1(a) (1994), claiming that the trial court erred in applying the 1989 sentencing guidelines and abused its discretion in sentencing him to a double durational departure from the presumptive sentence. We affirm. Facts Appellant was tried on four counts of criminal sexual conduct stemming from his sexual assault of K.D., his stepdaughter, and K.S., a family friend.(1) [Footnote] (1)Appellant was adjudicated guilty of second-degree criminal sexual conduct under Minn. Stat. § 609.343, subd. 1(a) (1994), for his sexual assault of K.S. That conviction is not the subject of this appeal. At trial, K.D. testified that appellant began initiating sexual contact with her when she was six years old. Appellant began by touching her breasts and ``privates,'' and this occurred every day or every other day, usually while her mother was at work. By the age of 10 or 11, appellant penetrated her orally and anally and required her to perform oral sex on him. K.D. also testified that after each sexual assault appellant would warn her not to tell anyone. He told her that if he were forced to leave the home, he would be unable to protect her from her mother, who physically and verbally abused her. K.D.'s brother, B.D., who was 11 years old at the time of trial, testified to observing several instances of sexual misconduct involving appellant and K.D. Following the jury's finding appellant guilty on all counts involving K.D., the trial court adjudicated appellant guilty of first-degree criminal sexual conduct under Minn. Stat. § 609.342, subd. 1(a). Although the complaint had alleged that the offenses occurred between 1988 and 1994, the court utilized the 1989 sentencing guidelines and sentenced appellant to an executed term of 196 months, a double durational departure under those guidelines. Decision 1. Application of Sentencing Guidelines Appellant contends that he should be sentenced under the pre-1989 sentencing guidelines because some of the acts involving penetration occurred prior to the August 1, 1989 effective date of the 1989 guidelines. We disagree. While K.D.'s testimony was imprecise regarding the dates of the sexual acts, she clearly stated at trial that appellant first penetrated her when she was ``10 or 11.'' K.D. reached age 10 in 1992. Thus, the record was not deficient regarding the date of the offense, and the court properly applied the 1989 guidelines. See State v. Goldenstein, 505 N.W.2d 332, 348 (Minn. App. 1993) (trial testimony may establish date of offense), review denied (Minn. Oct. 19, 1993); See, e.g., State v. Lunsford, 507 N.W.2d 239, 244 (Minn. App. 1993) (requiring evidence of timing of sexual acts for imposition of patterned sex offender statute; statute applies if no reasonable likelihood that all acts occurred before effective date of statute), review denied (Minn. Dec. 14, 1993). Appellant also contends that he should have been sentenced for multiple acts of sexual misconduct under Minn. Stat. § 609.342, subd. 1(h) (iii) (1994), instead of for a single act of sexual misconduct under Minn. Stat. § 609.342, subd 1(a). He claims that the multiple acts offense is a more serious offense than the one for which he was adjudicated guilty. We disagree. All acts of first-degree sexual conduct are of equal seriousness under the applicable criminal statutes and the sentencing guidelines. See Minn. Stat. § 609.342, subd. 2 (1994) (establishing same statutory penalty for any first- degree criminal sexual conduct offense); Minnesota Sent. Guidelines II.A. (``Offenses listed within each level of severity are deemed to be generally equivalent in severity''). Thus, the trial court was not obligated to adjudicate appellant guilty under Minn. Stat. § 609.342, subd. 1(h) (iii), which involved multiple acts of sexual conduct, rather than under Minn. Stat. § 609.342, subd. 1(a), which involved only one act but included elements that covered K.D.'s youth and the disparity between appellant's and K.D.'s ages. 2. Guidelines Departure Appellant also argues that the facts of this case do not warrant a departure from the presumptive guidelines sentence. The trial court has broad discretion in imposing a sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). Within that discretion, a court may depart from a presumptive sentence when the offense involves substantial and compelling circumstances. State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981); Minnesota Sent. Guidelines II.D. In determining whether to depart, the court may not consider evidence that points to the defendant's guilt of some other offense but that does not support the conclusion that the defendant committed the offense in question in a particularly serious way. On the other hand, generally it is proper for the sentencing court to consider the course of conduct underlying the charge for which the defendant is being sentenced. State v. Cox, 343 N.W.2d 641, 643 (Minn. 1984) (citations omitted). See also State v. Cermak, 344 N.W.2d 833, 837 (Minn. 1984) (court may consider ``cause of conduct''). We conclude that the district court did not abuse its discretion in sentencing appellant. The following aggravating factors listed by the court support departure: the threats made to K.D., the particular cruelty of the offense, the abuse of the significant relationship between K.D. and appellant, and the multiple occurrences of the offense. State v. Carpenter, 459 N.W.2d 121, 128 (Minn. 1990) (abuse of trust and authority proper basis for durational departure); Cermak, 344 N.W.2d at 839 (fact of multiple violations ``can be considered in determining the particular seriousness of the underlying conduct'' of criminal sexual conduct; threats may make sexual misconduct particularly cruel). Additionally, the multiple types of penetration, prolonged length of the misconduct, and the fact that the misconduct occurred in the presence of another child also could have been used as aggravating factors supporting the upward durational departure. See State v. Mortland, 399 N.W.2d 92, 95 (Minn. 1987) (different types of penetration and commission of misconduct in presence of child proper bases for durational departure); State v. Casady, 392 N.W.2d 629, 635 (Minn. App. 1986) (duration of misconduct proper basis for durational departure), review denied (Minn. Sept. 24, 1986). Affirmed.