General Engineering Development Corporation, a South Dakota corporation, Appellant, vs. Murnane, Conlin, White & Brandt, a Minnesota professional association, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

State of Minnesota,

Respondent,

vs.

Demaine Earl McClinton,

Appellant.

Ramsey County District Court

File No. K4993699

John M. Stuart, Minnesota State Public Defender, Mary Wolf, Assistant Minnesota State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN  55414 (for appellant)

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

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, 50 Kellogg Blvd. West, Suite 315, St. Paul, MN  55102 (for respondent)

            Considered and decided by Shumaker, Presiding Judge, Kalitowski, Judge, and Anderson, Judge.

ANDERSON, Judge

            Appellant challenges his sentence for second-degree criminal sexual conduct, arguing that his 70-month prison sentence, a ten-month upward durational departure, was not supported by substantial and compelling circumstances.  Because we conclude that the presence of aggravating circumstances supports the sentence, we affirm.

            Between April and August 1999, appellant Demaine Earl McClinton, age 24,stayed overnight two or three times per week in the home of his girlfriend.  Appellant's girlfriend has a daughter, R.B., who was born July 21, 1993, and was between five and six years old.

            R.B. reported that during the time that appellant had been staying overnight at the house he had touched and rubbed her where she wipes herself after she goes to the bathroom, and that he had touched her on her vagina.  Appellant entered a plea of guilty to the crime of criminal sexual conduct in the second degree.  Appellant admitted to entering R.B.'s bedroom in the early morning hours, waking her up, and touching her in her private area. 

            At sentencing, the state argued for an upward durational departure and appellant's counsel argued for a downward durational departure.  The presumptive sentence was 60 months, executed.  Appellant was sentenced to 70 months, a ten-month limited upward durational departure.  This appeal follows. 

            Appellant argues that the district court abused its discretion in imposing the ten-month upward durational departure on his second-degree criminal sexual conduct sentence.  The decision to depart from sentencing guidelines rests within the district court's discretion and will not be reversed absent a clear abuse of discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  In determining whether to depart in sentencing, the district court must decide "whether the defendant's conduct was significantly more or less serious than that typically involved in the commission of the crime in question."  State v. Broten, 343 N.W.2d 38, 41 (Minn. 1984).  If aggravating factors are present, a sentencing court has broad discretion to depart from the sentencing guidelines.  State v. Best, 449 N.W.2d 426, 427 (Minn. 1989). 

            Aggravating factors, such as those in the guidelines, must be present to justify an upward departure.  See Minn. Sent. Guidelines II.D.2.b.  This list of potentially aggravating (or mitigating) factors provided by the sentencing guidelines is non-exclusive.  See Minn. Sent. Guidelines cmt. II.D.201.  "The aggravating or mitigating circumstances justifying departure from the presumptive sentence must be present in the record."  State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999) (citation omitted).  In addition, when a sentencing court departs from the presumptive sentence, it must still strive to determine a sentence that is proportional to the severity of the offense.  Id. at 89 (citing Minn. Sent. Guidelines II.D.).  In the present case, the court acknowledged on the record that it was keeping the departure "at a lower level" than what was recommended by the prosecution.  As a general rule, when aggravating circumstances are present, the upper limit on a durational departure is double the presumptive sentence.  State v. Glaraton, 425 N.W.2d 831, 834 (Minn. 1988).  Generally, this court will not interfere with a district court's discretion in sentencing unless the sentence is disproportionate to the offense.  State v. Smallwood, 594 N.W.2d 144, 157 (Minn. 1999).  

            If reasons supporting a departure are stated on the record, this court examines the record to determine whether the reasons justify the departure.  Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).  "If the reasons given justify the departure, the departure will be allowed."  Id.  Even if the stated reasons are found to be inadequate, the departure will be affirmed if there is sufficient evidence to otherwise justify the departure.  Id.  The district court needs only one valid reason to support an upward departure from sentencing guidelines.  State v. Jeno, 352 N.W.2d 82, 85 (Minn. App. 1984).  In deciding to impose a limited upward departure, the district court identified two main factors that contributed to its determination. 

            First, the trauma suffered by the victim was significant.  "Emotional and psychological effects on a victim may be reason to depart."  State v. Branson, 529 N.W.2d 1, 5 (Minn. App. 1995), review denied (Minn. Apr. 18, 1995).  The district court found that the victim experienced trauma including nightmares, behavior problems in school, and a fear of all men, symptoms that were expected to haunt her for some time.  The court characterized it on the record as "extreme trauma." 

Zone of Privacy

            Second, the district court found that appellant had violated the victim's "zone of privacy" by assaulting her in her own bed, in her home. 

Invasion of the "zone of privacy" is an aggravating factor, because being victim of a crime occurring in one's home imposes an additional psychological shock.  The victim's home is no longer the "island of security" upon which the victim has previously relied, thereby making the offense particularly cruel. 

State v. Coley, 468 N.W.2d 552, 555 (Minn. App. 1991) (citing State v. Hines, 343 N.W.2d 869, 873 (Minn. App. 1984)). 

            Appellant argues that, because he was a regular guest in the home of the victim, perhaps even a household member, the "zone of privacy" factor does not apply.  Appellant cites State v. Volk, 421 N.W.2d 360 (Minn. App. 1988), review denied (Minn. May 18, 1988), for the proposition that invited guests are immune from the "zone of privacy" factor.  However, in Volk, it was the victim himself who invited Volk into his home, and the court based its decision on that fact.  Id. at 366.  In the present case, the victim had no choice in the matter.  Indeed, given her young age, Volk is irrelevant to the present circumstances. 

            Citing State v. Johnston, appellant next argues that he was not a stranger to the victim's household, which "is normally the case when this factor is used to justify a sentencing departure."  390 N.W.2d 451, 457 (Minn. App. 1986), review denied (Minn. Aug. 27, 1986) (citations omitted).  However, this court has previously held that a perpetrator need not be a stranger to the victim's household in order to find a violation of the victim's zone of privacy.  In Coley, the victim's attacker was her former husband and he had lived in the same home with the victim for 20 years.  Coley, 468 N.W.2d at 555-56.  In that case we held that

[t]he victim is entitled to the same security as are persons not divorced; to say otherwise might raise a real question of whether she is receiving equal protection of our laws. 

Id. at 56.  In the present case, appellant is not related to the victim by blood or marriage.  Appellant was not a constant presence in the victim's home, but rather only visited two or three nights a week.  This visitation had only been going on a few short months.  And, most importantly, the victim had no choice in the matter.  Appellant's argument that his status as an irregular guest of the victim's mother somehow deprives the victim of her expectation of a zone of privacy is completely without merit and we reject it. 

            In addition to the two specific grounds that the court used to justify its upward departure, the record contains other factors.  A sentencing departure will be upheld, even if based on inadequate factors, if it can be supported based on other appropriate sentencing factors.  Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).

            Among the departure factors included in the guidelines is the exploitation of a victim's vulnerability.  Minn. Sent. Guidelines II.D.2.b(1).  The victim was six years old at the time of the charged offense and was asleep in her bed when appellant assaulted her.  Exploitation of the vulnerability of a sleeping child has been held to justify an upward departure.  State v. Bingham, 406 N.W.2d 567, 570 (Minn. App. 1987). 

            Based on the record and factual findings, the district court did not clearly abuse its discretion in its limited upward departure.  The court had discretion to depart and has adequately explained reasons for departing, and we independently find that there were additional substantial and compelling circumstances warranting the 10-month upward departure in this case.  

            Affirmed.