Opinion
No. CX-01-442.
Filed November 6, 2001.
Appeal from the District Court, Ramsey County, File No. K2-00-338.
Mike Hatch, Attorney General, and Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, (for appellant)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appellant challenges his two convictions of second-degree criminal sexual conduct, arguing that the testimony of the two victims was inconsistent, possibly fabricated, and uncorroborated, and therefore insufficient to support the convictions. Appellant also challenges the double upward durational departures on the two sentences, arguing that they were not supported by aggravating circumstances. We affirm.
FACTS
Sisters F.S. (age 15), G.M. (age 12), their siblings, and their mother were evicted from their apartment. Appellant Todi Mohammed Abdeldaim, a family friend, agreed to allow them to live with him in his duplex. Prior to moving in with appellant, the children would occasionally spend weekends and overnights with appellant and referred to him as their uncle. Initially, five of the seven children (F.S., G.M., their younger sister, and their two younger brothers) moved in with appellant while the children's mother and their oldest sister lived with other friends. A few months later, the children's mother and their oldest sister also moved in with appellant. Appellant assumed a guardian-type role by attending meetings at school both with and without the children's mother, and became actively involved in disciplining the children. F.S. and G.M. lived with appellant in his home from approximately September 1998 through August 1999.
At trial, testimony differed regarding the sleeping arrangements in appellant's duplex. Appellant testified that he and the two boys slept in his bedroom, while the four girls and their mother slept in the living room. According to F.S. and G.M., they, their younger sister, their two younger bothers, and appellant slept on three floor mattresses in appellant's bedroom: one for their two brothers, one for G.M., F.S., and their younger sister, and one for appellant. After their mother and oldest sister moved in, F.S. slept in the living room with them, while G.M. continued to sleep in appellant's bedroom, sharing a mattress with her younger sister.
G.M. testified that at some point her association with appellant began to change. After everyone went to bed, appellant would move G.M.'s little sister from her spot next to G.M. G.M. testified that while she was lying on her stomach, appellant, with the lower half of his body on top of her and the upper half supported by his arms, would move up and down touching her between her buttocks with his penis. G.M. testified on cross-examination that appellant "would always have a towel with him." G.M. could not recall exactly when appellant began touching her this way, but estimated that she was in the sixth grade (12 years old) at the time.
While G.M. testified to numerous incidents over a period of time, F.S. testified that appellant touched her in a similar manner on one specific occasion. F.S. testified that when she was in the eighth grade, one Friday she stayed home from school because she was sick. Nobody else was in the duplex except F.S. and appellant. F.S. was sleeping on her stomach on a mattress in the living room where she normally slept with her mother. She testified that she awoke to find appellant on top of her, touching her buttocks with his penis. When F.S. got up, appellant went into the kitchen and told F.S. that he was going to pick up her siblings at school.
The state charged appellant with two counts of second-degree criminal sexual conduct, in violation of Minn. Stat. § 609.343, subd. 1(g) (1998). A jury found appellant guilty of both counts. The district court imposed concurrent prison terms of 42 months and 54 months, stayed execution of the sentences, and placed appellant on probation for 25 years. The sentences imposed represented a double upward durational departure for the two severity level VI offenses. Appellant was also ordered to serve one year in the workhouse as a condition of the stay. This appeal followed.
DECISION 1. Sufficiency of the Evidence
In considering a claim of insufficient evidence, this court's review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jury to reach their verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court must assume that the jury believed the state's witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
Appellant argues that the evidence is insufficient to sustain his convictions of second-degree criminal sexual conduct.
Subdivision 1. Crime defined. A person who engages in sexual contact with another person is guilty of criminal sexual conduct in the second degree if any of the following circumstances exists:
(g) the actor has a significant relationship to the complainant and the complainant was under 16 years of age at the time of the sexual contact. Neither mistake as to the complainant's age nor consent to the act by the complainant is a defense * * *.
Minn. Stat. § 609.343, subd. 1(g) (1998).
Subd. 15. Significant relationship. "Significant relationship" means a situation in which the actor is:
(3) an adult who jointly resides intermittently or regularly in the same dwelling as the complainant and who is not the complainant's spouse.
Minn. Stat. § 609. 341, subd. 15(3) (1998).
"Sexual contact" for the purpose of section 609.343, subd. 1(g), includes "the intentional touching by the actor of the complainant's intimate parts" and the "touching of the clothing covering the immediate area of the intimate parts" with "sexual or aggressive intent." Minn. Stat. § 609.341, subd. 11(b)(i) (iv) (1998). The statutory definition of "intimate parts" includes the buttocks. Minn. Stat. § 609.341, subd. 5 (1998).
It is undisputed that both victims were under the age of 16 and that appellant had a significant relationship to them during the time period in question. The only disputed elements are whether appellant touched intimate parts of both girls with sexual or aggressive intent.
Appellant contends that the evidence was insufficient because the testimony of F.S. and G.M. was inconsistent, possibly fabricated, and uncorroborated. "[W]eighing the credibility of witnesses is the exclusive function of the jury." State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980) (citation omitted). "The jury is entitled to believe the victim's account of the events." State v. Schwab, 409 N.W.2d 876, 879 (Minn.App. 1987) (citation omitted).
Both F.S. and G.M. testified about appellant's sexual contact with them. Their testimony was not entirely consistent and was more detailed than their pretrial statements. But the fact that the testimony of a victim of child sex abuse is not entirely consistent and is more detailed than prior statements is not uncommon and is not grounds for reversal. State v. Garden, 404 N.W.2d 912, 916 (Minn.App. 1987), review denied (Minn. June 25, 1987). A pediatric nurse practitioner trained in child abuse assessment separately interviewed and examined F.S. and G.M. The nurse testified at trial that a child's disclosure of sexual abuse may occur as a process over time and that usually a child does not disclose the totality of sexual abuse details all at once.
In a criminal sexual conduct prosecution, "the testimony of a victim need not be corroborated." Minn. Stat. § 609.347, subd. 1 (1998). But the testimony of F.S. and G.M. was corroborated by their demeanor, the sexual detail they described, their detailed separate interviews at MCRC (Midwest Children's Resource Center), and by the overall consistency of their disclosures. Even if there had been no such corroboration, the testimony of F.S. and G.M. alone was sufficient to support the verdicts. See Schwab, 409 N.W.2d at 879 (uncorroborated testimony of five-year-old victim of second-degree criminal sexual conduct was sufficient to support jury verdict).
Viewing the evidence in the light most favorable to the convictions, we conclude that there was sufficient evidence to allow the jury to find beyond a reasonable doubt that appellant committed two counts of second-degree criminal sexual conduct as charged.
2. Sentencing Departures
Appellant argues that the district court erred in imposing double upward durational departures from the presumptive sentences. A second-degree criminal sexual conduct conviction has a severity level of VI on the sentencing guidelines grid. The first conviction, with a criminal history score of zero, carries a presumptive stayed sentence of 21 months. The second conviction, with a criminal history score of one, carries a presumptive stayed sentence of 27 months. The district court imposed concurrent prison terms of 42 months and 54 months and stayed execution of the sentences. The district court based the durational departures on the vulnerability of the victims, the absence of their mother, the fact that there were multiple victims, and the commission of crimes in the victims' home.
The decision to depart from sentencing guidelines rests within the district court's discretion and will not be reversed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). "When a district court departs, it must articulate substantial and compelling reasons justifying the departure." State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999) (citing Minn. Sent. Guidelines II.D).
Appellant argues that the "facts and circumstances of this case do not constitute any aggravating factor justifying an upward departure."
The general issue that faces a sentencing court in deciding whether to depart durationally is whether the defendant's conduct was significantly more or less serious than that typically involved in the commission of the crime in question. * * * [G]enerally 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. Broten, 343 N.W.2d 38, 41 (Minn. 1984) (citations omitted). Appellant's underlying course of conduct included multiple acts of sexual abuse of G.M. over an extended period of time. This conduct significantly exceeds the elements of second-degree criminal sexual conduct. Minn. Stat. § 609.343, subd. 1(g), requires only a single incident of such abuse. Appellant's conduct also significantly exceeds the elements of second-degree criminal sexual conduct because he always approached the victims when he believed them to be sleeping. Additionally, appellant's abuse of G.M. occurred in the same room with three other sleeping siblings and involved moving one of them to facilitate the abuse.
The evidence established that both victims were particularly vulnerable because they were sleeping at the onset of appellant's sexual contact with them. See State v. Skinner, 450 N.W.2d 648, 654 (Minn.App. 1990) (victim's vulnerability was increased because appellant began touching her while she was asleep), review denied (Minn. Feb. 28, 1990); State v. Bingham, 406 N.W.2d 567, 570 (Minn.App. 1987) (appellant placed victim in vulnerable position by attacking her while she was asleep on the family couch). See also State v. Gettel, 404 N.W.2d 902, 906 (Minn.App. 1987) (upward departure affirmed, with one reason being the vulnerability of the victim due to the combination of her prior use of alcohol and her sleeping when accosted), review denied (Minn. June 26, 1987).
The state concedes in its reply brief that
some of the grounds cited by the trial court (Appellant's special relationship to the children and the crime occurring in the victims' home) are not valid departure factors in this case since they are inherent to a "significant relationship" abuse charge.
But the state maintains that "the multiple incidents as to G.M. and the particular vulnerability of both victims more than adequately supports the double departure in this case." We agree. Additionally, the fact that appellant brought a towel with him during these abusive incidents supports an inference of an established plan or pattern, which is an appropriate aggravating factor. See State v. Kindem, 338 N.W.2d 9, 17-18 (Minn. 1983) (citing planning as an appropriate aggravating factor justifying departure); State v. Sebasky, 547 N.W.2d 93, 101 (Minn.App. 1996) (citing planning and manipulation as valid aggravating factors), review denied (Minn. June 19, 1996).
We are also mindful that a departure may be justified when the crime a defendant is being convicted of also constitutes a violation of other subsections of the criminal sexual conduct statute. See State v. Morales, 324 N.W.2d 374, 377 (Minn. 1982) (the fact that defendant did not just violate one subdivision of the criminal sexual statute, but violated three separate subdivisions, cited as appropriate aggravating factor justifying departure). Appellant's conduct also constitutes violations of Minn. Stat. § 609.343, subd. 1(e)(ii) (1998), (complainant is physically helpless), and Minn. Stat. § 609.343, subd. 1(h)(iii) (1998), (sexual abuse involved multiple acts committed over an extended period of time). Both of these offenses are severity level VII offenses that carry a presumptive executed sentence of 48 months.
Accordingly,
[w]e examine the record to determine whether it supports the trial court's stated reasons for a departure. Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985). If the trial court relied partly on improper considerations, we will affirm a sentence if it is justified by sufficient aggravating factors. Id. Sebasky, 547 N.W.2d at 100. We conclude that the district court's double upward durational departures were justified by sufficient aggravating factors.