Patricia L. Larsen, et al., Appellants, vs. Mayo Foundation, 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This opinion will be unpublished and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
IN COURT OF APPEALS
C8-99-759

State of Minnesota,
Respondent,

vs.

Newton Wyatt Henderson,
Appellant.

 

Filed December 7, 1999
Affirmed
Kalitowski, Judge

Ramsey County District Court
File No. K2974099

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

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

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Kalitowski, Presiding Judge, Amundson, Judge, and Holtan, Judge.[*]

 

U N P U B L I S H E D   O P I N I O N

KALITOWSKI

, Judge

Appellant Newton Wyatt Henderson alleges the district court abused its discretion by imposing an upward double durational departure sentence following his conviction for criminal sexual conduct in the first degree. We affirm.

 

D E C I S I O N

Appellant pleaded guilty to two counts of kidnapping in violation of Minn. Stat. § 609.25, subds. 1(2), 2(2) (1996), and one count of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(c) (1996). At the sentencing hearing, the court sentenced appellant to 196 months for the first-degree criminal sexual conduct conviction, a double durational departure. The court also made a durational departure on the kidnapping convictions, imposing concurrent sentences of 96 and 116 months, respectively. On appeal, appellant challenges only the district court's double durational departure from the presumptive sentence for a first-degree criminal sexual conduct conviction.

Upward departure is within the sentencing court's broad discretion if substantial and compelling aggravating circumstances are present. Minn. Sent. Guidelines II.D; State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981). Substantial and compelling circumstances are those demonstrating that the defendant's conduct was significantly more serious than that typically involved in the commission of the crime. State v. Cermak, 344 N.W.2d 833, 839 (Minn. 1984). When the sentencing court has given reasons supporting its decision to depart from the presumptive sentence, this court examines the record to determine whether the reasons given justify the departure. Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).

Here, the district court found: (1) the victim endured multiple acts of penetration; (2) the sexual assaults occurred under threat of death; (3) the victim suffered particular humiliation because the assaults took place in front of her boyfriend; and (4) the victim was not sexually active prior to the sexual assault. Appellant contends the district court erred in finding these factors supported a double durational departure. We disagree.

Multiple penetrations alone can justify up to a double departure. State v. Yanez, 469 N.W.2d 452, 456 (Minn. 1991), review denied (Minn. June 19, 1991); State v. Mesich, 396 N.W.2d 46, 52 (Minn. App. 1986), review denied (Minn. Jan. 2, 1987). Further, death threats also constitute an aggravating factor supporting a durational departure. Cermak, 344 N.W.2d at 840. Although a sentencing court cannot use an element of the underlying offense as the basis for a durational departure, State v. Gardner, 328 N.W.2d 159, 162 (Minn. 1983), neither appellant's repeated death threats during the assault nor his threat that others would harm the victims if they reported the crime were part of the underlying criminal sexual conduct or the kidnappings. Thus the court properly considered the threats as an aggravating factor justifying the departure.

Finally, the court permissibly identified the particularly degrading circumstances of the assault and the humiliating comments that appellant made in justifying the upward departure. State v. Allen, 482 N.W.2d 228, 233 (Minn. App. 1992), review denied (Minn. Apr. 13, 1992). The court also acted within its discretion in considering the victim's vulnerability due to her age and sexual inexperience. Id. at 232. We conclude the factors identified by the district court are sufficient to justify a double durational departure for appellant's first-degree criminal sexual conduct conviction.

 Affirmed.

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