Opinion
No. C6-96-2382.
Filed August 19, 1997.
Appeal from the District Court, Hennepin County, File No. 96017074.
Lawrence W. Pry, Assistant Public Defender, (for appellant).
Hubert H. Humphrey III, Attorney General, Michael O. Freeman, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, (for respondent).
Considered and decided by Parker, Presiding Judge, Crippen, Judge, and Short, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
A jury convicted Jimmy Lee Hollis of third-degree assault and felony malicious punishment of a child under Minn. Stat. §§ 609.223, subd. 1, and 609.377. On appeal, Hollis argues: (1) there is insufficient evidence to uphold his convictions; (2) the trial court abused its discretion in sentencing Hollis to a double upward durational departure; and (3) the trial court erred in ordering Hollis to pay "costs" as a condition of his probation. We affirm, but reverse and remand on the issue of costs.
DECISION I.
When evaluating the sufficiency of the evidence supporting a conviction, our review is limited to whether a jury could reasonably have found the defendant guilty of the charged offense. State v. Davidson, 481 N.W.2d 51, 58 (Minn. 1992). We view the evidence in the light most favorable to the verdict, and assume the jury believed the state's witnesses while disbelieving any contrary evidence. State v. McKenzie, 511 N.W.2d 14, 17 (Minn. 1994).
Hollis argues the evidence was insufficient to show the injuries sustained by his son constituted "substantial bodily harm." See Minn. Stat. §§ 609.223, subd. 1, 609.377 (1996) (listing "substantial bodily harm" as element of third-degree assault and felony malicious punishment of a child). We disagree. Minn. Stat. § 609.02 (1996) defines "substantial bodily harm" as bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily member or organ, or which causes a fracture of any bodily member.
The record demonstrates: (1) Hollis's son suffered bruises on his inner left thigh, scrapes above the bruising, scrapes at the base of his penis, and multiple tears and abrasions in the lining of his penis; (2) those injuries temporarily rendered the boy's penis and testicles deformed and severely swollen, left him temporarily unable to urinate, caused excessive distention of his bladder, and resulted in excessive discomfort for days after the assault; and (3) the examining doctor and the nurse testified they had never witnessed injuries of that magnitude before. Given these facts, the trial court properly found Hollis's son suffered substantial bodily harm.
II.
A trial court may depart from the presumptive sentence set forth in the Minnesota Sentencing Guidelines when "substantial and compelling circumstances" are present, which make the facts of a particular case different from a typical one. Minn. Sent. Guidelines II.D.; State v. Peake, 366 N.W.2d 299, 301 (Minn. 1985) (citation omitted). We will not reverse a trial court's sentencing decision absent a clear abuse of discretion. State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981).
Hollis argues the trial court abused its discretion in sentencing him to double his presumptive sentence. However, in deciding on an upward departure from the sentencing guidelines, the trial court considered: (1) the crime's psychological impact on the victim; (2) the particular cruelty of the crime as shown by the larger pattern of abuse, location of injuries, and failure to seek prompt medical assistance; and (3) the victim's particular vulnerability. See State v. Mortland, 399 N.W.2d 92, 95 (Minn. 1987) (considering severe psychological impact on victim as grounds for upward durational departure); State v. Udstuen, 345 N.W.2d 766, 768 (Minn. 1984) (considering as aggravating facts "particularly cruel" acts "consisting not just of a single temporary loss of control but of multiple acts of abuse"); State v. Partlow, 321 N.W.2d 886, 887 (Minn. 1982) (concluding vulnerability of two-year, ten-month-old child was proper aggravating factor); State v. Morrison, 437 N.W.2d 422, 429 (Minn.App. 1989) (affirming upward departure based in part on defendant's failure to provide medical attention), review denied (Minn. Apr. 26, 1989).
The record demonstrates: (1) Hollis's two-and-a-half-year-old son had two loop-shaped scars on his abdomen and a linear scar on his leg, consistent with a pattern of abuse; (2) the boy was diagnosed by a clinical psychologist as suffering from post-traumatic stress disorder; (3) Hollis failed to seek prompt medical attention for his son's injuries and allowed approximately six hours to elapse before arriving at the hospital; (4) Hollis used belts and electrical cords as a method of discipline; and (5) Hollis blamed other family members and acquaintances for his son's injuries. Under these circumstances, we conclude the trial court did not abuse its discretion in making a double upward departure from the sentencing guidelines.
III.
Hollis finally argues the trial court erred in ordering him to pay $500 in costs as a condition of his probation because the court did not detail the costs or make specific findings regarding his ability to pay. See Minn. Stat. § 631.48 (1996) (providing sentencing court may, as part of the sentence, order defendant to pay whole or any part of prosecution's disbursements); see also State v. Niemczyk, 400 N.W.2d 401, 404 (Minn.App. 1987) (requiring trial court to detail costs imposed on defendant). Although failure to make specific findings regarding a defendant's ability to pay costs does not constitute reversible error, the state agrees the trial court failed to make the necessary findings detailing the costs. See Perkins v. State, 559 N.W.2d 678, 693 (Minn. 1997) (holding sentencing court need not specifically find defendant has ability to pay fine prior to imposing fine as part of sentence). Under these circumstances, we must reverse the trial court's order to pay costs and remand that issue to the trial court for appropriate action.